Who Get's What in Divorce?: Marital Property Division

Marital property is the legal property of both spouses. It is everything that the spouses acquired together subsequent to the marriage. This is notwithstanding who actually purchased or acquired the property or whose money was used. Marital property division becomes a complicated matter in a contentious divorce and often the courts have to decide who get's what in a divorce.

Equitable Distribution

Most states have equitable distribution laws in place as opposed to community property laws. The few remaining community property law states are Arizona, California, Idaho, Nevada, New Mexico, Louisiana, Texas and Washington State. While community property states divide marital property 50/50, equitable distribution states, as the term implies, attempt to divide marital property "equitably." A fair and reasonable division may not be 50/5w0, but may leave one spouse with 40 percent while the other receives 60.

Courts attempt to be fair and reasonable when distributing marital property. With this goal in mind, they look at a number of factors that include but are not limited to:

  • Any prenuptial agreement or agreement made during the marriage
  • The duration of the marriage
  • The income and earning ability of both spouses (this is important regarding issues of spousal support)
  • The individual debt and liabilities of each spouse
  • The current value of the marital property
  • The income property brought into the marriage by each spouse
  • Who actually acquired or purchased what
  • How disadvantaged each spouse will be after the marriage dissolution
  • Who will be the primary caregiver of any children; this is goes into who may retain any marital residence for the benefit of the children

Marital Property

The most common marital property that come under review include the following:

  • Any real estate including the marital home
  • Furniture and house fixtures
  • Cars and other vehicles
  • Any savings accounts, stocks and bonds
  • Life insurance policies, IRAs, 401ks and other pension plans
  • Any business that is owned by either spouse

Courts will determine if certain assets can be labelled differently than the marital assets. These usually include any property that is:

  • inherited by a single spouse;
  • obtained prior to the marriage; or
  • gifts to either spouse by a third party (gifts given to one spouse by another is considered marital property)

Marital Debt

The courts also attempt to divide any marital debt equally. These debts include:

  • House mortgage
  • Car loans
  • Bank loans
  • Business loans
  • Home improvement loans
  • Any unpaid bills

It is the responsibility of the spouses to label what is marital property. Even those properties acquired before marriage but in anticipation of marriage (for example, if the spouses acquired the family home together before marriage) will be deemed marital property. Even property acquired while separated but up to the point when a divorce was filed may be considered.

Find an Attorney

If you are contemplating a divorce, unless you live in a community property state, courts will try to determine who will get what along equitable lines. The common division is to provide for that spouse who will be more adversely affected financially by the divorce. Contention can arise when one spouse attempts to "hide" marital spouse or re-label it.  Protect your interests by consulting with an attorney experienced with your state's divorce laws.

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