Property Rights in Divorce

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Each couple seeking divorce has the right to reach a consensus regarding property distribution and draft an agreement accordingly. For this, they are free to take the help of their lawyers. In case, a couple has drafted a property distribution agreement, the judge reviews it to ensure that it is fair enough. The court does not take into account any instances of marital misconduct while dividing the property.

Overview of Property Rights in Divorce

If the couple fails to reach an agreement regarding property division, the judge is allotted the rights to finalize this division. If it is a community state, the judge divides the property in a 50:50 proportion. In case of equitable states, there is no such set percentage for distribution.

The property of a married person undergoing divorce has to be categorized into 2 types - marital and non marital. Non marital property consists of the following 2 types of properties.

  • The partner has received any inheritance or gift during marital life
  • All properties acquired prior to the marital life

Nobody has the right to divide the non marital property.

Marital property consists of the following. This is divided between the partners.

  • Retirement or pension plans
  • Real estate
  • Securities
  • Bank accounts
  • Other property purchased in course of marriage

Factors affecting Property Rights in Divorce

When the judge is allotted the task of property division, he/she takes into account several factors. The presence or absence of these factors affects each partner's rights over the property. Some of these factors are as follows.

  • The requirements, income, health and age of both partners
  • If the property is divided in a specific manner, what are the tax consequences for each partner?
  • The duration of marital life
  • If either partner had any previous marriage, has this marriage resulted in any rights or obligations?
  • Does any spouse have any probable chance of future attainment of assets or income?
  • What is the child custody plan?
  • The amount of non marital property of each spouse
  • The input of each partner towards attainment and preservation of the property. This is inclusive of the input of a partner as a homemaker

Community Property Rights

In community property states, all the property that is earned by either spouse from their date of marriage till their date of separation is jointly owned. In case of a divorce or dissolution, each spouse has right over 50 percent of the gross property. A parallel ideology is applicable for debts also.

Separate Property Rights

Each person has the right to claim all income, debts and property that has been gained prior to the date of marriage and post date of separation as separate property. Moreover, any gifts or inheritances are also included in this category.

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