Post-Divorce Property Division

One of the things that gets decided in a divorce is how the couple’s property gets divided. The process for deciding property division should begin before the divorce is even submitted to the courts and should only include property that was acquired while the couple was married. The divorce laws vary from state to state but there are some general rules you should follow when it comes to getting the property you think you deserve in a divorce.

Remember that in a divorce you want the courts to decide as little of the final arrangements as possible. You want your attorney and your spouse’s attorney to have all of those arrangements hammered out before you stand before the judge. This is the part of the divorce that can get complicated and if you allow the courts to make the final decision then the chances are that neither party will be happy when it is over. Prior to submitting a divorce request to the courts you want to have a separation agreement all worked out and agreed to that can be submitted to the courts as the terms of the divorce. In most cases, as long as it is a mutually agreed to document and it is as complete as the courts need it to be, the courts will accept a separation agreement as the terms of the divorce and this is why you want to spend your time, money, and effort making sure that you are well represented in your separation agreement.

When you are dividing up property in a divorce via the separation agreement you need to include every piece of property that the couple owns or else the court could reject the separation agreement as incomplete. This includes debts incurred by the couple. The debts of the couple need to be agreed to prior to filing for divorce so that the courts know who is going to be responsible for the various credit cards and loans that the couple has acquired. Keep in mind that creditors do not look at a divorce decree as a change in the loan document so if you agree that your spouse is responsible for certain debts and they do not pay those debts, and your name is on those debts as well, then you become responsible for those debts in the eyes of the creditor and the courts will back the creditor on that as well. So if you do not have faith that your spouse will pay the debts you agree to assign to them then you are probably better off taking on those debts yourself to avoid future aggravation.

The question of who gets the house and the property is always a loaded one especially if there is a large estate involved. Whether or not both spouses contributed to the purchase of the property both have claim to the property in a divorce. This is usually where couples go to court because they cannot agree in advance who is to get which property and who is going to have the cars and boats as well. If this can be worked out in advance then that is to everyone’s mutual advantage but this is usually where divorces get drawn out and the courts need to get involved.

One of the ways that property and belongings can be protected from a divorce is if the couple enters into a prenuptial agreement prior to being married. Known as a prenup, this agreement can determine who is to get what property should the couple ever divorce and it can also protect any property that you brought into the marriage as well. Sometimes trying to agree on a prenup can cause as much friction as agreeing to the terms of a divorce but if the couple wants to protect themselves from each other if the marriage should go bad then a prenup is an essential agreement.

Property laws in divorce cases vary from state to state. If you are filing for a divorce, you need to find out just what your state laws are.

Most states abide by “Community Property Law.” This includes all property, assets and debts accumulated during the marriage. Wages and income accrued during the marriage are also taken into consideration. This is called “Equitable Distribution.”

If a couple can decide on their on how to distribute their affairs, that is great. However, often times they can’t. When this occurs, they must turn to the state and its courts. These are the two ways most states determine asset and debt divisions:

  • Community Property Divisions: In so called “Community Property” states, like Texas, all properties are classified in one of two ways…either as “Separate Property” or “Community Property.” “Separate Property is normally property owned before the marriage. “Community Property” is property acquired after the marriage. In states like Texas, New Mexico, Wisconsin, Washington, Louisiana, Nevada, Arizona, Idaho, Wisconsin, Puerto Rico, and Alaska, the spouse who has property owned before the marriage gets to keep it, undivided.
  • Equitable Distribution: This includes all income and assets accumulated by the couple during their marriage. In order to divide these assets in a fair manner, usually the highest of the two wage earners gets the largest percentage of the spoils. The odd thing here is that these principles are not followed in the community property states. Go to http://www.fairmark.com/spousal/comprop.htm to see just what the laws are in these states.

If you have a large settlement, you definitely need to hire an attorney. Lawyers will know the local laws and will be able to assist you with getting the best settlement in your interest. They are well worth the money you pay them to keep from losing everything you have worked for.

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