Division of property during a divorce is accomplished through agreement by the spouses, a property settlement, or judicial decree. Several factors are considered and representation from an expert lawyer that deals with marital property is recommended to avoid losing any entitlements. Virtually all divorce attorneys will offer a free consultation to help you understand your rights. The marital home is a major asset and deciding who keeps it is not always easy.
Division of Property During Divorce
Most state divorce courts consider ten main factors when determining an equitable division of property during a divorce. These include whether the property was acquired prior to or during the marriage, who paid for it, and who has the higher earning power. Existence of a premarital agreement, duration of the marriage, and whether the marriage ended due to the fault of one spouse are other considerations.
Community property is owned jointly by the spouses and several states follow community division of property guidelines when dividing property held by a couple. This means that if the home is awarded to one spouse, the other will receive assets of equivalent value. Other states follow an equitable division of property guideline that calls for property to be divided in a fair manner. Division of property in community property states follows a unique distribution method.
If one partner requests to keep the home, the property should be refinanced to remove financial obligation from the other spouse and pay out his or her equity. If the couple has children, one spouse may want to remain in the home and if refinancing is not possible, will need to buy out the interest of the other spouse. This ex may remain in the home subject to a contingency such as minor children reaching adulthood, at which time the home will be sold and equity divided.
If the couple decides to sell the home due to divorce, the equity should be divided equally. Some divorce judgments leave possession of the property to one spouse who must list, show, and sell it. Prior to the sale, the other spouse may be responsible for some or all of the mortgage, maintenance, and upkeep on the home. The divorce judgment should stipulate these responsibilities, sale time frame plus a detailed process to follow if the home does not sell. If a judgment does not include these factors, problems dealing with the division of property may persist after the divorce is complete.
Whether one spouse chooses to live in the home or the couple agrees to sell it, an attorney that specializes in determinations of marital property will help ensure a satisfactory outcome and a fair division of property during your divorce. The home is usually the most expensive asset shared by a couple and if it is mortgaged, it is typically also the most expensive debt they share. Fair division of property ensures that neither person is unduly burdened. Always make sure you understand your rights before signing any agreement–a good wa to make sure you don’t lose your rights is by speaking with an expert divorce attorney for free.