Divorce Property Division

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

There are various things to consider while going for a distribution of assets during divorce. They include marital and non-marital belongings, and separate holdings as well as the debts and the obligations. It always helps if the couple arrives at a settlement on their own as the court judgment can be unpredictable. Yet, if the couple fails to come to a settlement, there is always an option for a fair distribution through the court, which benefits both the parties equally.

This term does not essentially imply a physical division of assets. The court decides that a certain percentage of the total value should be awarded to each spouse. Accordingly, the two partners get assets, personal assets 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, it 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 given the right to issue orders that one spouse should utilize his / her separate savings and holdings to ensure an equitable division (this is applicable to some equitable states in the US). That is, if one partner has more amount of personal assets, then he is liable to get less of the marital share.

Community distribution

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

How is Community and Non Community assets are Differentiated during Property Division?

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 that is joint debts
• An exception to this point is when the creditor particularly considers the separate earnings 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
• Assets bought using the separate funds of the spouse
• If a spouse had owned a business prior to marriage, it continues to be in his/her ownership during marital life
• An exception to the above mentioned point is that if both partners worked on this business during the marital life or the business appreciated during marital life, then a section of this business might be regarded as community belongings.
• Let us consider that a separate earnings has been blended with community holdings during the marital life. Then, depending on the circumstances, it is regarded as community share, completely or partially.

A Blend of Community and Separate Property

• Let us assume that one or both spouses can prove that some assets were bought using separate funds as well as community funds. Then, this is classified as part community and part separate holdings.
• If separate earnings are commingled with community belongings, then it is termed as marital belongings.

Now-a-days, most of the states; to be precise, 41 out of 50; follow equitable distribution principle. This is basically a divorce property division that is fair. 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 moeny.
• 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 bread for the family. This factor is considered substantial, during distribution.
• 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 assets. However, if it collapses within a few years, the division is done so that each spouse can go to the premarital lifestyle they lead.
• Cause of Divorce - If the cause of divorce is either abuse, adultery or abandonment, the other spouse gets a benefit in the division during separation.
• 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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