How to Divide the Assets in a Divorce

Overview of the process to divide marital property during a divorce case.

A major task in a majority of divorce cases is dividing up assets you and your spouse obtained during the course of your marriage. If you and your spouse desire to mutually agree on how to divvy up property, the court grants you a considerable degree of latitude to accomplish this task. With that noted, you must understand the standard applied in your state in regard to property division. Some states use the community property standard, through which each spouse is entitled to 50 percent of the assets. Other states follow the equitable division principle, calling for a fair division of property based on the specific facts of the case.

Things You'll Need

• Property settlement agreement

Instructions

1. Determine which property division standard is used in your case. Although you do not need to follow the standard to the letter during negotiations, it provides information about what to expect if you cannot settle property related issues. The statute is available through the website maintained by your state legislature.

2. Remove from the property subject to division through negotiation any assets that either you or your spouse owned before the marriage. Non-marital assets such as these types of items are not subject to division and are retained by the individual who obtained them before marriage. Other assets not subject to division include property inherited by one spouse or given to that spouse as a gift.

3. Prepare a list of property that you desire to maintain as your own following the conclusion of the divorce. Encourage your spouse to take the same step.

4. Exchange lists as part of an overall negotiating process.

5. Meet with your spouse, assuming you can carry on reasonable communication with one another. Iron out any differences in your individual positions regarding asset distribution. As is the case with all other types of negotiation, the process involves an element of give and take.

6. Draft a property settlement agreement itemizing the property division reached through negotiations. The court clerk likely maintains a selection of standard forms for your use in the divorce case, including a property settlement agreement.

References

• "Nolo's Essential Guide to Divorce"; Emily Doskow; 2008
• Cornell University Law School: Divorce Overview
• "The Complete Divorce Handbook: A Practical Guide"; Brette McWhorter Sember; 2009

Resources

• American Bar Association: Section of Family Law
• HG.org: Guide to Family Law
• ABA Family Law Quarterly: Family Law in the 50 States