Property Division in Your Divorce

Aug 8, 2012 by

People facing a divorce might be surprised to learn that although the laws that govern the division of marital property and assets in all 50 states are a bit different, they all are based on one of two basic division methods used within the U.S. legal system: community property division and equitable property division.

Community property division attempts to divide all property and assets equally between spouses. A few states have adopted this way of handling property settlements and include: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states the goal is to give each person precisely half of the total value of assets minus total amount of debt. Though this appears the most obvious way to handle property division fairly, it is not always the easiest way.

Complicating the matter are issues such as pre-marital property and other assets which factor in, as well as the amount of value the other spouse may have added to the property or asset during the marriage. Often it’s difficult to determine a precise value on such things as stock options or business value. To further complicate matters, specific ways to divide the property using community property division varies among the nine states mentioned above.

Equitable distribution of property, used by the remaining 41 states, attempts to look at the whole picture of assets, debts, resources, and future ramifications. Often, the result is an unequal division between the spouses. Based on what is “fair and just” as opposed to “equal”, equitable distribution can involve complicated formulas. Generally, equitable property states look at such factors as: length of marriage, work history and job prospects, the physical and mental health of both parties, the source of partner assets, and the expenses for any minor children. Exceptions within the equitable distribution system sometimes include property or assets owned by one spouse prior to the marriage, as well as gifts or inheritances given to one of the spouses during the marriage. It is often not easy to predict the final outcome when equitable distribution is applied.

For those contemplating divorce, it’s important to familiarize yourself with the laws in your own state. You’ll need to find out what to expect when you learn whether your state falls into the community property division or the equitable property division guidelines. Since every state has its own modifications to these laws, it can help to know your state’s particular interpretations too. To find out the laws in your area you can check with the courthouse in your particular jurisdiction or talk to a local divorce attorney. An online divorce document service that serves your area will also be able to arm you with the facts on how marital property will be divided in your case. It is information you need to know.

 

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