Who gets what?
The divorce process involves a financial separation as well as an emotional one. Which assets will you own following the divorce, and which will be owned by your former spouse?
In an uncontested divorce, the two of you may be able to divide your assets on your own, and then have that agreement memorialized by your attorneys. If future ownership is in dispute, however, a court may have to decide. How the judge will make that decision will depend largely on guidelines set out in state law. While specifics vary significantly from state to state, you should be aware of some key concepts, including marital and non-marital property and equitable distribution.
Marital Versus Individual / Non marital Property
Marital property includes virtually all property that you and your spouse acquired during the marriage: real estate, investments, bank accounts, art collections, cars, boats and so on. Almost anything owned by you and your spouse will be included except property that was:
• Given to one of you or that you inherited
• Acquired before marriage
• Acquired using property that was a gift, inherited or already owned before the marriage
• Excluded by a prenuptial or other agreement
You should discuss the issue of marital property carefully with your attorney, because it can become very complex depending on how non-marital assets were combined and used during the marriage. What’s more, appreciation of non-marital property during your marriage may be considered marital property in some jurisdictions.
Dividing Marital Property
Most states will rely on the concept of equitable distribution in dividing marital property. The goal is to achieve a division that is fair based on a range of considerations, including the contribution of each spouse to acquiring and maintaining the marital property, the length of the marriage, needs related to child custody and the financial needs, circumstances and future prospects of each spouse. In a contentious divorce, it is important to have a knowledgeable divorce lawyer to ensure that all relevant factors are included in your case.
Another system that exists for dividing marital property is the “community property” approach, which is used in nine states. In these states, property is divided evenly between the spouses, regardless of how it came into the marriage or the projected financial needs of either spouse. Clearly, the classification of community property versus non-marital property takes on special importance in the division of assets.
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