A divorce involves dividing everything you and your spouse built together. This goes for cash, property and even time with children. However, not all property division is created equal. Since state laws dictate who gets what, it may be helpful to learn about the two models most often used. Armed with this knowledge, you may then know better what to expect.
Marital Property Versus Separate Property
Before understanding how courts divide property, you first need to understand what falls into the category. Most states break property into two categories: marital versus separate. When it comes to dividing things, the court will only address marital property. This is everything accumulated by the couple during the marriage. Things such as joint bank accounts, vehicles and real estate all count as property. Likewise, everything a spouse comes into the marriage already owning is considered separate property. A bank account that is pre-owned counts as separate, only if marital funds are not comingled. Once they are, it becomes marital property. Whether it passed to a spouse before or during the marriage, an inheritance is not marital property unless it is deposited into a joint marital account.
Equal Versus Equitable Division
The states set guidelines for how judges will divide your marital property. The first way is splitting things equally. This means that each spouse gets approximately half of all property and assets. Some states subscribe to an equitable distribution method. In this type of situation, a judge may look at factors in the marriage to determine who gets what. It is considered to be fairer because it takes into account things such as:
- A stay-at-home spouse’s contribution to the marriage
- Who may have caused the demise of the marriage
- Whether one spouse has more separate property than the other
- The support of the spouses for each other
Debt and Division
Many couples not only accumulate money and assets but also debt during their relationship. So how does the court decide how to divide the debt? Typically, a judge will give each spouse a proportionate share of the debt and the assets. In an equal split state, it means each gets to carry half the debt. In an equitable distribution state, the ratios are usually also maintained. The exception is whether one spouse grossly mismanaged marital funds and racked up more of the debt. If so, that spouse typically becomes responsible for all of it.
Hiring a divorce lawyer at the onset of divorce can save you frustration and stress over how money gets divided. An attorney can manage expectations of the process to come.