Dividing Property in a Divorce

Updated on 01/17/2021 / Under

Before proceeding to divorce, a couple needs to make sure that they are considered to be ‘spouses’ under the law. Normally, couples who are married, or have been in live-in relationships for a minimum of two years are seen as spouses. Non-spousal partners can claim their right to the property if they can provide substantial proof of their relationship.

Once the law establishes a spousal relationship, dividing property in a divorce can be performed in the following steps:

Calculating assets

Listing down your total assets and subtracting them from your total debts will give you the number of actual assets you possess. Assets are anything that the couple owns jointly or separately at the date of separation.

Regardless of who owns the property, everything is split equitably between the couples at the time of divorce – unless there is a special agreement or court order that suggests otherwise. Your assets, ‘family property’ or 'community property' could include the following:

  • Your residential home
  • Other real-estate property
  • Vehicles
  • Businesses
  • Bank accounts
  • Pension plans and retirement benefits
  • Investments
  • Insurance policies

Excluded property – such as gifts, inheritances, and any trust or real property that you purchased prior to getting married or living together – will also have to be deducted from the asset calculation.

Hiring a Professional

Although the lawyers perform the bulk of the tasks during divorce proceedings, you might need other professionals as well. These could be:

  • Real estate agents
  • Appraisers
  • Mortgage planners
  • Tax specialist/accountant
  • Arbitrators
  • Forensic accountant (if you suspect any foul financial activity, such as concealment of assets)
dividing property in a divorce

Evaluating the Timeframe

Before making the claim, you will have to ensure that you are within the timeframe specified by the law. This timeframe is two years from the divorce date from married couples, and two years from the date of separation for live-in relationships.

Compiling the Required Paperwork

Go through all your paperwork with a fine-tooth comb, especially any cohabitation or marriage agreement. Some agreements also include property clauses and understanding those might require you to take assistance from a family lawyer.

Confirming the Jurisdiction

Your relevant jurisdiction will assess and rule on your divorce application. The jurisdiction is simply the province where you and your spouse resided prior to separation.

In some cases, however, it is not that simple. For instance, if your spouse resided somewhere else for an extended amount of time and also owns property in that region, you or your ex-spouse might require court orders for that other province. This is why it is crucial to ascertain your jurisdictions beforehand.

Assessing the Property Market Value

This is probably the most complicated and time-consuming part of divorce property division and one where your team of professionals will really come into play.

For properties that you and your ex purchased during your time together, you will have to determine the date on which each item was purchased, how much it was bought for, and what would be its market value on the day of separation.

Since this data might be difficult for you to accurately compile on your own, you might have to hire a real estate appraiser. A forensic accountant could also be consulted if you feel the need to get any portfolios or businesses investigated.

Similar information will be required for excluded property – the value of every asset immediately before the time you started living together, as well as the assets’ current market worth.

Negotiations

Now that you are armed with all the data, you can make your claim. Negotiations are a routine part of divorce proceedings, whether you are dealing directly with your ex-partner, or working alongside your lawyer or a mediator. Once again, it is important to remember that, unless any unique circumstances surround your divorce, the property will be split equitably between the two parties.

Common Questions Regarding Divorce Property Division

What is equitable distribution?

Most judges will follow the ‘equitable distribution’ approach while dividing marital assets. This means that, instead of splitting assets 50-50, the judge will determine a fair, or equitable division. For instance, the court might give a larger percentage of the property to the spouse that earns the lower income. Equitability can be determined based on other factors as well:

  • The length of the marriage or relationship.
  • Each spouse’s age.
  • How each spouse contributed to the other’s professional and educational opportunities.
  • The custodial parent’s need to own the marital house.
  • The mental and physical health of both spouses.
  • Any tax consequences that might result from the division of property.
  • Other factors that might help the court to come to a just and fair decision.

Who will get the house?

It depends on a few factors. If you and your spouse do not have any children, the decision about who gets the marital house might vary from state to state and even court to court.

The law does not allow either spouse to demand the other person to leave, but it can be requested and agreed upon. However, if you fail to come to a mutual agreement, the decision will be made based upon the rules applied in your particular state.

If you do have children, the court is likely to grant the house to the parent that contributed more to their upbringing. Most of the time, this is also the parent that has primary custody of the children. However, the spouse that gets the house will also have to ensure that they can solely afford the mortgage and other living costs.

Due to these complications, often the best option for the separating couple is to sell the marital home and divide the proceeds.

Will a prenup agreement protect my assets?

There are two types of nuptial agreements – prenuptial (agreement occurring before the marriage) and postnuptial (agreement occurring during the marriage). A nuptial agreement clearly distinguishes between marital property and property that you own separately.

Therefore, it can help you protect your property and streamline the property division process in case of a divorce.

However, prenups are rendered void if the other party can successfully challenge its validity. A prenup can be considered invalid if the other party was coerced into signing it, or if it was based on misrepresentation or fraud, or was improperly signed.

Even without a prenup, you and your ex can negotiate an out-of-court settlement, in which you can agree upon marital and separate assets.

Will my share of marital property increase if it was my spouse’s behavior that led to the divorce?

Again, it depends on your jurisdiction. However, most states do not factor in behavior when splitting up marital assets. For instance, it is improbable that you will get a larger portion of your marital house because of your spouse’s infidelity.

However, a spouse’s misconduct could have an impact on spousal support and alimony. For example, if your spouse is involved in illicit actual activities, it is highly likely that the court will not grant alimony to them.

To conclude, property division and division of assets are essential aspects of separation and one that can get complicated, especially when you combine it with the emotional burden that comes from leaving someone you spent so much time with. For this reason, it is important that you stay in touch with your family law attorney and other relevant professionals throughout the process.

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