Who Gets What Property During Divorce?

Property During DivorceWhich spouse keeps which property during divorce is a questions many couples fret over when deciding to split up. When married couples file for divorce, they embark on a process that requires a lot of decision-making. One of the biggest decisions is how to divide their property. Unfortunately, there is no universal law for property division in divorce cases. Each state has different rules regarding types of property subject to division and how the property should be divided. Speaking with an expert divorce attorney is the number one way to keep the property you deserve during divorce!

Division of Property During Divorce

The major determinant of how property is divided during divorce  is whether the state follows rules of equitable distribution or community property. In an equitable distribution state, a judge reviews the marital property and determines a fair distribution based on who earned the property, the length of the marriage, the earning power of each party, and other factors. Marital property in divorce is usually split 50-50 in a community property state, but may be divided differently in an equitable division state. The court calculates the marital estate value and awards an equal, or in some states, an equitable percentage to each party.

Division of Marital Property During Divorce

Only the marital assets of the couple are subject to property division in divorce. This is the property that the couple acquired during the marriage. A car, home, and other assets purchased during the marriage may be considered marital property, as can wages earned and retirement savings made during the marriage. This holds true even if one party did not work. Nonmarital property, which is not subject to division, includes inheritances and gifts made to one party and property that one party brought into the marriage.

Unfortunately, what is considered nonmarital property is not always clear-cut. Property that is initially nonmarital can become marital property if mixed with other marital property. Depositing an inheritance into a bank account held jointly with a spouse is one example. This is why it is important to use an attorney to determine the proper division of property during divorce.

There is no clear-cut answer to which party gets the marital home during the divorce. If children are living in it, the spouse granted primary custody is favored to receive it under the law. In exchange, the other spouse usually receives a larger award of other marital property during divorce. If neither spouse can afford to remain in the home individually, the house may be sold and proceeds (or losses) divided.

Marital debt is also subject to property division in divorce. Mortgages, home improvement loans, business loans, bank loans, car loans, and unpaid bills are common marital debts. The court will attempt to divide these debts equally so neither spouse is unfairly burdened with repayment. Spouses are responsible for identifying marital property, nonmarital property, and marital debt and an attorney can help. Speaking with a divorce attorney that provides a free consultation is your first step to getting what you and your family deserve!

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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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