Top 4 Things to Know About Property Rights During Divorce

Challenges of Filing for Divorce during a Pandemic
May 5, 2020
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Thirty-nine percent of marriages end up in divorce due to domestic abuse, getting married for wrong reasons, falling out of love, infidelity, and lack of emotional support.

Couples can accumulate private property during marriage and end up losing them during a divorce. Owning property involves a variety of rights, which is the exclusive authority to determine how a resource is used. Below are some guides to property rights during divorce that you need to know.

Composition of Marital property

Divorce terminates the legal partnership between two spouses; it can also require that the property previously shared by the couple be divided. Marital property is property acquired during a marriage and includes:

  • The real estate you and your spouse bought during the marriage, except for any contributions of your separate property, you may have made to such property, like paying part or down payment with different property funds
  • Personal property, like cars, boats, airplanes, furniture, and the artwork you and your spouse bought during the marriage
  • Cash, securities, bank accounts, retirement accounts and pensions acquired during the marriage
  • Advanced educational degrees, and permits to engage in specialized businesses acquired during the marriage
  • Gifts to each other
  • Benefits from previous employers
  • Lottery tickets: If a winning lottery ticket was bought during the marriage, the winnings are marital property
  • Pets

Retained earnings and money loaned to others are also part of marital property. For example, if your spouse loaned some money to their friend when the money is returned, it is subject to division in divorce.

Community and Non-Community Property

While property owned by either spouse before the marriage can remain the property of the original owner, most things acquired after the wedding, which can be either community or marital property, are often subject to division upon divorce.

Here are the rules for determining what is community property and what is not:

  • Community property. Community property includes earnings and everything acquired with the earnings during marriage. All debts incurred during the marriage, unless the creditor was specifically looking to the separate property of one spouse for payment, are community property debts
  • All assets and income, whether brought into the marriage and acquired during the marriage, with a few exceptions specified by law, become the couple’s joint property. If the marriage is dissolved, all joint property is divided equally between the spouses
  • Separate property of one spouse. Includes gifts and inheritances given just to that spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested before marriage. Property purchased with the separate funds of a spouse remains that spouse’s separate property
  • A business owned by one spouse before the marriage remains his or her separate property during the marriage. However, a portion of it may be considered community property if the business increased in value during the marriage or both spouses worked at it
  • Property purchased with a combination of separate and community funds. It is a part community and separate part property, so long as a spouse shows that some different funds were used. Separate property mixed with community property generally becomes community property

In a deferred full or partial community of property, the rules of the full or partial community of property apply when the marriage is dissolved; until then, separation of property applies.

Distribution of Property

During your divorce case, you will ask for equitable distribution of property. The court will consider the following when deciding how to distribute the marital property:

  • The income and property of each spouse at the time of the marriage
  • How long the marriage lasted
  • The age and health of both spouses
  • If there are children, whether or not one spouse, the custodial parent needs the home or any other marital property while the children are growing up
  • The loss of inheritance and pension benefits

Though it might be challenging to quantify a spouse’s effort in a household, for example, a homemaker sacrificing her career for her husband’s sake, this should be another ground for consideration. A trustworthy law firm should help you in getting a good share of the marital property

Valuation of Assets

Equitably dividing a divorcing couple’s assets is a time-consuming and challenging process for a judge; therefore, the court will probably ask you to negotiate with your spouse on the value of the assets. Even in relatively amicable divorces, however, the opposing parties often place very different valuations on the various properties, leading to a standstill.

Before your lawyer or the judge comes to intervene, here are five factors you should keep in mind if you and your spouse are going to try to divide your property yourselves:

  • List your belongings. Working together makes a list of all of the items that you own jointly. Of course, you can omit details; both of you agree to personal things of insignificant value
  • Value the property. Try to agree on the value of anything worth more than a specific agreed amount. If there is anything complicated to value, get an opinion about that from some agreed-upon outside authority
  • Decide on the logical owner. Now go through your main list, item by item, and decide whether there is some good reason to have each property go to one or the other of you. Start with the most significant value items and see how far you can get
  • Get the judge’s approval. If you and your spouse can agree on dividing the property you own together; the court will generally approve whatever agreement you’ve reached. The only exception is when a party who doesn’t have a lawyer seems to have agreed to take a lot less than half of it

On top of the factors listed above, when valuing the assets, you should consider the appreciation and depreciation of assets, revenue, debts, and profits.

Inheritance

Inheritances are generally considered separate property and are therefore exempt from the division of property between spouses.

Divorce is a complex process that needs a trustworthy law firm to represent your interest in court. Contact us today for more advice on your property rights during divorce.

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