Marriage is happily ever after, right? For some people, yes, but for others things go wrong. Divorce becomes the best solution. The media is constantly covering one celebrity break up or another, but you probably never thought it would happen in your real life. Then along with the emotional turmoil, you and your spouse are now faced with dividing property and assets. This can be a volatile subject with feelings ranging from just wanting it to be done to full scale war over every single thing. Fortunately, the law has established guidelines that provide a path for navigating this difficult situation.
The process of dividing assets can be overwhelming. If you and your spouse can agree on a fair division of marital property on your own or with a third party mediator, then a short hearing is usually all that is necessary to gain a judge’s approval. Generally speaking, anything you and your spouse acquired during the marriage is considered marital property. The big exceptions to this rule are called nonmarital or separate property. These would include any items either of you owned before marriage, any inheritance, third party gifts, items excluded by valid agreement – for example, a prenuptial agreement – and/or anything directly traceable to one of those sources. Nonmarital property is not divided and stays with the original owner.
There are cases where spouses cannot agree on how to divide assets. In this event the court determines equitable distribution using factors established by state law. After the property is identified and valued, these factors will be taken into consideration by the judge when dividing the property. It should be noted that equitable distribution does not mean equal distribution; it means that the court will divide the property in a way it thinks is fair. Some of the factors taken into consideration are length of marriage, each party’s age, health, educational background and income, the assets, any nonmarital property, contributions to the well being of the family, what led to the breakup of the marriage, and what contributions each party made to the acquisition of the property. To achieve equitable distribution the court does have the power to sell jointly titled property, give a monetary award for marital property titled to only one party, and/or adjust retirement assets using orders that do not cause penalties or tax consequences.
Whether your divorce is amicable or more sensational, the law and your attorney are there to ensure the disposition of your marital property is fair and legal for both you and your spouse.