Divorce & Separation of Property

Numerous factors come into play when dividing up divorce property.

Before divorce and separation of property, assets ownership may occur in two ways during the course of the marriage. The first method, called "community property," gives each spouse an equal stake in the ownership of any property accumulated during the marriage. The majority of states permit each individual to acquire property during the marriage. The other spouse does not have an interest in this property. When it comes to divorce and separation, the majority of states have a method called "equitable distribution."

Considerations

Equitable distribution considers various factors to arrive at fairness for each of the parties. Differences does exist depending on the state, but usually three elements must exist when using this particular approach to diving up marital assets: ascertain what property to divide, determine the value of the property and the the final distribution of the property.

Types

The majority of states divide property into marital property and non-marital property. Typically, most states only allow martial property in the count of equitable distribution assets. Other states add all property owned by both parties come under the equitable distribution laws regardless of ownership or the time purchase.

Identification

Overall, marital property accumulated during the marriage fall under the heading of "marital property." The timing of the purchase during the course of the marriage varies from state to state. For instance, in some states property acquired during divorce proceeding may not come under marital property.

Non marital assets do not count towards equitable distribution. Most states with equitable distribution laws classify property as property purchased before marriage; inherited by one party or mutually agreed to exclude from the marital assets. Non-marital property may become marital property if commingling of the property takes place.

Valuation

The method of valuation for property differs from state to state. The value of the property and the date it goes into use affects the value of the asset. Other considerations for arriving at equitable distribution includes, the date the spouses separated, the actual trial date the equitable distribution takes place and the date the divorce becomes final.

Effects

The court uses three factors to determine the final asset distribution: the financial position of each person, including his or her income, the period of the marriage and the custodial spouse residing in the home and with the responsibility of the children. Some court also take into account other factors, such as fault and marital conduct when determine the final distribution of property.

References

• Lawyers: Equitable Distribution