The breakup of a marriage is an extremely stressful event. Emotions run high, and not knowing where you will end up living or who will get the kids takes quite a toll. And then there is the confusion and contention that’s usually associated with the division of assets. It’s enough to make you swear off ever getting married again.
Responsible parents can often find a way to put their differences aside when it comes to deciding what’s best for the children. But with assets, it’s often a different story. Some couples are so bitter toward one another that they will fight tooth and nail over every single possession. In some cases, a spouse who feels that he or she has been wronged will try to keep important assets as a means of revenge. And then there are times when couples attempt to work things out amicably, but just can’t agree on who should get what.
If the divorcing couple can come to an agreement on the division of assets, the issue may not need to go to court. Otherwise, all assets must be reported to the judge and he must make a decision. The division of assets depends on several factors, and it is not always equal.
State law plays a role in deciding where assets go. Most states are equitable distribution states. This simply means that it is up to the court to decide on a fair and reasonable division of the assets. Contrary to popular belief, it does not mean that each party gets half of the assets. Each spouse could get anywhere between nothing and everything. The same applies to responsibility for debts.
Community property states do things a bit differently. The judge is required to split everything down the middle, but he has discretion in deciding which assets go to which former partner. But the laws on debts vary among community property states. In some it is also divided equally, while in others it is divided equitably.
It’s important to remember that these laws apply only to marital property. Marital property is property acquired by the couple during the marriage. It does not include property that each partner owned before getting married, nor does it include gifts that are specifically given to only one partner, or inheritances of one partner. For property that fits into these categories, the spouse that owns the property must prove that it qualifies as non-marital property.
When there are children involved, the distribution of assets is generally dependent on their best interests. The parent who gets custody will usually retain the family home, as well as any property that the judge believes is essential in caring for the children. But in some cases, the spouse that keeps the home will be ordered to buy out the other spouse’s equity.
There are many factors that could affect the distribution of assets. In some cases, assets must be sold and the proceeds divided between the spouses to carry out the court’s decision. Consulting a lawyer is strongly advised, even if you and your spouse agree on who should get what.
