Divorce Property Division

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Most of the couples seeking divorce prefer to distribute their property and debts themselves. For this, they may or may not take the assistance of a neutral third party i.e. a mediator. In several cases, the above steps might fail. Then, the couple approaches the court to ensure a fair division of property.

There are various things to consider when going for a divorce property division. There is marital and non-marital property, and separate property as well as the debts and the obligations. It always helps if the couple arrives at the settlement on their own as the court does not favor anybody and hence, the judgment can be unpredictable. Yet, if the couple fails to come to a settlement, court is always an option for a fair distribution which benefits both the parties.

Division of property does not essentially imply a physical division. The court decides that a certain percentage of the total value should be awarded to each spouse. Accordingly, the two partners get assets, personal property and debts in such a way that their combined worth is equal to this percentage. If any spouse conceals some assets to prevent their division, this is regarded as unlawful.

Types of Divorce Property Division

Equitable distribution

• The earnings and assets accrued in marital life are distributed fairly i.e. equitably. This does not essentially mean that they are divided equally
• The judge is offered the right to issue orders that one spouse should utilize his / her separate property to ensure an equitable division (this is applicable to some equitable states in the US)

Community distribution

• TThe gross property of a person seeking divorce in categorized into the following 2 types:
  • Community property: Both partners equally own this property
  • Separate property: One partner completely owns this property
• The community property is equally distributed between the partners i.e in a 50:50 ratio
• Each partner is allotted his/her separate property completely

In Divorce Property Division, how is community and non community property differentiated?

Community Property

• This consists of all earnings in marital life and the objects purchased with these earnings
• All debts that have occurred during marriage are considered community property debts
• An exception to this point is when the creditor particularly considers the separate property of one partner for payment

• Inheritances and gifts offered only to a specific spouse
• Personal injury awards given to one partner
• The proceeds of a pension to which the pensioner had become lawfully eligible prior to marriage
• Property bought using the separate funds of the spouse
• If a spouse had owned a business prior to marriage, it continues to be his/her separate property during marital life
• An exception to this point is that if both partners worked on this business in marital life or the business appreciated during marital life, then a section of this business might be regarded community property
• Let us consider that separate property has been blended with community property in the marital life. Then, depending on the circumstances, it is regarded as community property, completely or partially

A Blend of Community and Separate Property

• Let us assume that one or both spouses can prove that some property was bought using separate funds as well as community funds. Then, this property is classified as part community and part separate property
• If separate property is commingled with community property, then such a property is termed as community property

• Marital Property:

  The property which is acquired by the either spouse from the date they got married to the present date is marital property. The division of this property is usually 50-50 based on the assumption that both the spouses have worked equally to acquire it.

• Non-marital Property:

  The property which is acquired by the either spouse before marriage is known as the non-marital property. The spouse who has worked for this property is alone entitled to it, unlike the marital property.

Now-a-days, most of the states; to be precise, 41 out of 50; go for the equitable distribution of property. This is basically a divorce property division based on fairness. It means that it is not necessarily a 50 - 50 division, rather an equitable division based on the percentage and the other factors that contribute to a marriage and a divorce. These factors are as follows:

• Earning Ability of the Spouses - If a spouse is the sole bread-winner of the family and the other spouse and the children are dependent on him for survival, the dependent spouse gets an alimony which covers all the help needed for him or her to be independent and a fair share in the property.
• Non-financial Contribution - There are many factors which contribute a marriage. The contributions such as house-keeping, looking after the children and home-making are as important as winning the bread for the family. This factor is importantly considered while dividing the property.
• Duration of Marriage - If the marriage had been going strong for a quite a few years, it becomes an important factor in the division of the property. If it collapses within a few years, the division is done so that each spouse can go to the pre-marital lifestyle they lead. However, for long-lasted marriages, it is quite impractical as the children are involved.
• Cause of Divorce - If the cause of divorce is either abuse, adultery or abandonment the estranged spouse gets a benefit in the division of the property. Debts - The debts such as mortgage or car loan or other obligations such as credit and debit card payments are equally divided between the spouses.

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