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Getting a divorce is an extremely emotional experience, but it's important you keep your emotions under control so that you can come out of the situation in reasonably good shape, both emotionally and financially. One key practical issue in most divorces is the question of property division. Obviously, you want to keep as much of your property as the law allows. This article offers a primer on the topic of property division during the dissolution of a marriage.
Settlement
Generally, the best way to deal with property division is to come to an amicable agreement with your spouse concerning how the joints assets will be split. If the divorce court decides that the division is fair, then it will validate the agreement and further legal proceedings can be avoided. If no agreement can be reached, the divorce court judge will determine how the assets are divided based on state law.
Separate and Community Property
A key factor in splitting up the assets of a divorcing couple is whether a particular asset is considered to be separate or community property. Separate property is an asset that belongs to either your or your spouse as an individual. In most cases, you will be able to keep this type of asset. An example of a separate property is an inheritance you received from a deceased relative. Community property consists of assets that are owned jointly by both spouses, such as a property the couple acquired after the marriage. One of the most common types of community property is a house that the couple owns jointly.
State Law
If you and your spouse cannot come to an agreement about how to split up community property, then the issue will be determined based on whether your state is a community property state or an equitable distribution state. Equitable distribution states, which are the majority, decide how to split a couple's assets based on a variety of factors, with the goal of reaching a fair division. Important factors include the earnings and earning potential of each spouse, whether one spouse spent time at home raising the children rather than working, and the length of the marriage. A minority of states, including California and Texas, are community property states. In these states, the community property is split equally between the spouses.
Property division in a divorce can become quite complicated and you will need expert help to navigate the process. To learn more, contact a firm like McKone & Unruh in your city.
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