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When couples decide to end their marriage, they must settle a number of issues before the divorce is final. One of the main issues that must be resolved is the question of property division. It's a good idea for anyone entering into divorce proceedings to have some understanding of the legal basics of property division law. The following article answers some key questions about this crucial legal topic.
How Are Marital Property and Separate Property Different?
Marital property refers to the assets or liabilities that belong jointly to both spouses. Separate property is those assets or liabilities that are owned by only one spouse. Separate property is protected from being divided between the spouses, while the marital property will be split up according to the property rules of the state where the divorce occurs.
Examples of assets that typically fall into the category of marital property include real estate, such as a house, financial investments, and employment income and benefits. Separate property is often property that one spouse owned before entering into the marriage. Also, if one spouse receives an inheritance during the marriage, that money is considered separate property.
A critical point to note is that the law can sometimes declare that what was once separate property has become marital property. For instance, if a house is owned by one spouse as separate property, but both spouses make mortgage payments on the home during the marriage, a court might determine that the house is now marital property.
What Is the Community Property Framework?
States employ one of two legal frameworks to divide property between divorcing spouses. One system, used in a minority of states, is the community property concept. Under this rule, marital property is typically split equally between the spouses. For instance, the equity in a home owned jointly by the couple would be split 50/50 and all marital assets would be split equally as well. Each spouse still has the right to 100 percent ownership of their separate property.
What Is Equitable Distribution?
The majority of states divide property using a legal concept known as equitable distribution. This framework authorizes the divorce court judge to distribute the marital property in a way that the judge believes is fair to both parties. The judge might or might not decide that a 50/50 split of the marital assets is fair.
Under the equitable distribution concept, a judge will consider various factors, such as the earning potential of both spouses, the health and age of each spouse, the need for spousal support, and other relevant details when making their decision.
For more information on this topic, consult a divorce attorney or visit a site like http://gomezmaylaw.com/.
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