Property Division

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Disputes about marital property are often easier to settle, as they lend themselves to value analysis and a fair distribution of the marital property.

Depending on how the parties work together, and the length of the marriage, the determination of which spouse gets what property can be extremely easy or difficult and acrimonious. Couples who have been married a short time and have not acquired much property together usually take what they brought to the marriage and go their separate ways. Even if a home was purchased, it can be sold and the proceeds divided or one spouse can pay the other for his or her half.

On the other hand, couples in lengthy marriages have typically acquired a large amount of property and debt. One or both may have a vested interest in staying in the family home. Substantial employment and retirement benefits have usually accrued. The wife may have stopped working to raise the children and have no retirement benefits. Furniture, art and jewelry may have been purchased throughout the marriage. Gifts have been exchanged between the spouses; one or both may have received an inheritance.

In an “equitable distribution state”, all property acquired during the marriage is “marital property” and all property is divided into marital property (which means it is both yours and your spouse’s) and non-marital property (which means the property belongs to either you or your spouse alone).

In order to achieve an equitable or fair result, the court divides the property among the spouses in a just and right manner. “Just and right” does not mean an equal division of property. Courts divide the spouses’ property according to the rights each spouse has in the property and considering the needs of any children born during the marriage. For instance, if the wife used her inheritance to purchase the family home, the court may determine she has a larger interest in it than the husband (it is not automatically her separate property since she contributed it to the marriage as the family home.)

In general, the following rules apply when categorizing property into “marital” or “non-marital property”.

1. If the asset or debt was acquired after the date you were married it is presumed to be a marital asset or debt.

2. A non-marital asset or debt is one that was acquired before the date of your marriage. It is also a non-marital asset if you acquired it through a gift or inheritance. Income from non-marital property is also considered non-marital property.

3. Even if an assets or debt were acquired by your spouse individually, it is considered to be a marital asset or debt, if acquired during the marriage. This includes rights in pension and profit-sharing plans.

4.Real estate that is in both names is considered marital property.

In a “community property” state like California or Texas, marital property is generally divided 50/50 between the parties.

For additional information on divorce and property distribution rules in your state, click on the state link below.