How Can I Keep My Share of the Marital Property?

Division of property is one of the most tedious aspects of many divorces. If the divorcing couple has a lot of marital assets, which is property that was acquired during the union, dividing it can take months and involve several battles. While property was viewed as shared during the marriage, it now becomes very important to determine its new owner. The process can be stressful and time-consuming, to say the least.

Divorce and property division go hand in hand. Divorce terminates a legal partnership between spouses and divides property that the couple previously shared. Property owned by either spouse before the marriage may remain the property of its original owner. However, almost all items acquired after the wedding are typically subject to division when the couple divorces.

Most divorcing couples are unable to decide how to divide marital property. As a result, the issue typically winds up in court. The two main ways to handle the division of property during a divorce are community property and equitable distribution. Wisconsin, Washington, Texas, New Mexico, Nevada, Louisiana, Idaho, California, Arizona, Alaska, are community property states and the territory of Puerto Rico also follows community property laws.

With the community property approach, marital property is usually defined as “separate” or “community property.” During a divorce, separate property is retained by its owner and community property is evenly divided. All other states generally follow the equitable distribution method of property division. A judge determines a distribution that is fair or equitable. The court typically calculates the value of the marital estate and grants a percentage to each spouse.

A house is a major asset and various circumstances dictate which spouse receives it. If the divorcing couple has children, the spouse who is granted primary custody of the children will typically keep the home. How the home is distributed when children are not involved varies depending on the court. Neither spouse has a legal right to request that the other leave. If the couple cannot agree, the court will decide based on the property system and other regulations within the state.

Using a lawyer for marital property division is recommended because this area of the law is complex. During a divorce, many people do not receive property they are entitled to simply because they are unaware and lack legal representation. A divorce lawyer will fight for the share of marital property to which the client is entitled during a divorce.

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About the Author

Nicholas Baker is a practicing family law attorney with over a decade of experience handling divorce, child custody, child support, and domestic violence matters in the courtroom. Attorney Nicholas Baker believes in providing family law information for individuals so that they can make an informed decision about their own family law matter.

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