Property Division During a Divorce: 3 Details You Should Consider
Going through a divorce is already stressful for both parties, and property division can be a factor that adds even more. Couples that choose to go through with a divorce are encouraged to become familiar with their state’s laws and guidelines as every state differs. Whether you and your spouse decide to navigate property division on your own or with the help of a family law and divorce lawyer, familiarizing yourself with the process is the first step to a successful division of property.
Different Types of Divorce
Becoming familiar with the different types of divorce is helpful if you and your spouse have decided to take this step. Regardless of your situation, it’s essential to consider whether you and your spouse are willing to work together to reach a settlement or if frequent disagreements occur when working toward a resolution. Depending on your unique case, hiring a family law and divorce lawyer, mediator, or going to court may be more effective than trying to resolve the divorce on your own.
- Uncontested: You and your spouse work as a team to agree on the terms of your divorce and file court papers to make the divorce happen. There is no formal trial in an uncontested divorce, and it is unlikely that you or your spouse will be required to appear in court.
- Default: A divorce is granted by “default” if you file for divorce and your spouse doesn’t respond.
- Fault and No-Fault: In the past, one spouse has the opportunity to show that the other spouse was at fault for the marriage breaking down. Today, all states offer the option of “no-fault” divorce, which tells the court that both spouses are in agreement and have irreconcilable differences regarding the matter.
- Mediated: A neutral third party will sit down with you and your spouse to help resolve all issues in your divorce. A mediator is there to help you and your spouse communicate appropriately until an agreement is reached.
- Collaborative: Both spouses have lawyers, but instead of working separately, they work cooperatively to reach an agreement to settle your case. Both spouses agree to disclose any information that’s necessary to reach a fair negotiation.
- Arbitration: A private judge is hired to handle your divorce settlement to make the same decisions that a judge could make.
- Contested: If you and your spouse have a challenging time reaching an agreement about property or child custody, it’s beneficial to get a lawyer to help you. A lawyer will help you with a contested divorce, which consists of exchanging information, settlement negotiations, hearings, and possibly a court trial.
What Type of Property You Own
Each state varies in how property is divided in a divorce, and it’s encouraged for couples to be knowledgeable of the laws the state they reside in follows. If a lawyer is assigned to your case, he or she will be able to provide guidance on how your state completes division. Commonly, if you and your spouse have a large estate, it’s encouraged to hire an attorney to help you with a high-asset divorce. When navigating a divorce, there are two types of property that the court considers during property division.
- Non-Marital Property: This property belongs to only one spouse and is likely something one party owned before getting married. Gifts and inheritances or pensions vested before the marriage are also categorized as separate property.
- Marital Property: This property includes everything that both spouses have earned or acquired for their marriage duration. Paychecks from employment deposited into a joint account fall into this category, and typically homes do as well, especially if it was purchased with a combination of separate and community funds.
The State Where You Reside
Each state follows different guidelines as to how the courts divide property in a divorce. It’s essential for couples going through a divorce to become familiar with laws the state they reside in follows. This will help prepare you for what’s to come and alleviate any areas of uncertainty.
- Community Property: The state you’re located in will depend on how marital property is classified. In some states, marital property is considered either community or separate. Community property is commonly divided between spouses, with each spouse getting to keep their separate property.
- Equitable Distribution: If a state doesn’t classify the property as community or separate, it likely follows equitable distribution. This is when all assets and earnings accumulated during a marriage are divided fairly. The division may not be equal, meaning one spouse could get the house, and the other spouse would receive money for their portion of the house.
Dividing Property Yourselves
At times, couples going through a divorce choose to divide their property without the assistance of a lawyer or judge. This is specifically applicable when the couple getting a divorce can reach an agreement without guidance from a third party. In the circumstance that you and your spouse decide to divide property yourself, there are several steps that can guide you through the property division process and make it run smoothly.
- Make a list. Take time to work together and make a list of all community property. This will help you, and your spouse identify which items you want categorized as joint-owned versus separate.
- Identify the value. Once you’ve created your list of joint-owned and separate items, it’s encouraged to agree on each item’s value. Being transparent about the value of the property will allow you to split your property fairly.
- Choose an owner. After identifying each item’s worth, the next step is going through your list of joint-owned items and determining who gets what. It’s essential to take your time on this portion of the property division so that you can be sure items are divided equally. Start with the items of most significant value and make your way down the list.
- Get approval from a judge. If you and your spouse can work together and agree on dividing property evenly, the judge will likely approve whatever agreement you have decided on. There are instances where the judge won’t approve or will have questions, especially if one spouse ends up with significantly less than the other.
Contact a Family Law and Divorce Lawyer Today
Divorce can be a stressful, emotional time for all involved, and property division can add to this stress if not properly managed. Every state differs in its laws and guidelines for property division during divorce, making it essential that couples familiarize themselves or get guidance from a professional. Whether you’ve chosen to navigate property division with assistance from a family law and divorce lawyer or have decided to divide the property on your own, there are many resources available. Contact a family law and divorce lawyer today to get started on your property division.