People preparing for divorce need to know about the process. They have to understand what the law requires if they hope to negotiate with their spouses. Typically, spouses have to work out an equitable way to divide their marital estate. Equitable distribution laws require a fair solution for any property that is marital or shared by the spouses. The marital estate could include financial accounts and even the home where the spouses live together.
People who understand the basics of property division proceedings are in a better position to secure a favorable divorce settlement.
What assets are marital property?
Many people operate under the inaccurate belief that assets held in the name of one spouse are the separate property of that spouse. However, the income generated by either spouse is likely marital.
Any property acquired during the marriage or with marital income is usually marital as well. There are a few exceptions that people need to understand. Assets protected by prenuptial agreements could be separate property. Spouses might agree in advance to treat each spouse’s retirement savings account as separate property if the spouses divorce, for example.
Assets owned before marriage or after spouses separate are often separate property as well, provided that no commingling occurs. Inherited resources and gifts are also frequently separate property, which means they are not included in the pool of marital assets.
Certain resources, such as businesses and real property, are likely to be marital assets even if one spouse owned them before marriage. The use of marital resources to maintain or improve separate property can leave assets vulnerable to division during divorce proceedings.
What happens with the marital home?
Few property division issues are more likely to be emotional than decisions related to the marital home. Both spouses may have an attachment to the property. Additionally, it is a very valuable asset.
Spouses may have to negotiate possession of the property as part of the overall asset division process. The ability to afford the home is an important consideration. The courts may also consider a pre-existing connection to the property, especially if it has passed through multiple generations of a family.
Even the custody arrangements for the children shared by the spouses could influence which spouse keeps the home. Thankfully, regardless of who stays in the home, both spouses have a right to an equitable interest in the accumulated equity.
Discussing personal property division priorities and concerns with a skilled legal team can help people know what to expect during a divorce. One’s marital estate typically requires careful consideration, especially if there are disputes about what should happen with a shared home.