Division of Property in Divorce

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One of the most important issues that two people going through a divorce must settle is how to divide their property.  Knowing procedures for sharing marital property after divorce may make things easier and reduce tension. While consulting with a divorce attorney, you can feel more assured about your situation. Our friends at Brandy Austin Law Firm share information about property division during divorce below.

How is property divided in Divorce?

Property in many states is divided into two groups. Community property and separate property are examples of these categories. Community property refers to the idea that any assets a marriage acquires will be owned equally by both spouses. This implies that all marital assets earned by either party during the marriage will be treated as jointly owned by the parties. Many states’ laws indicate that any property acquired during the marriage is presumed to be community property and subject to community property division. All earnings made throughout the marriage, long-term investments, financial accounts, retirement benefits, and contributions to retirement funds are included in this Additionally, any marital debts incurred during the marriage are treated in a manner similar to how communal property is handled. Separated property is when a spouse had own property prior to entering into a marriage. As a result, any asset acquired before a marriage will be treated as separate property and will not be distributed. The court will examine each spouse and decide which property belongs to whom when it comes to distributing it. The court may take into account each spouse’s skills, physical condition, business potential, who will be more financially secure after the divorce, age, types of property, and finally, income.

What is the classification of separate and community assets?

Before the court can start the process of division of property, the court has to determine which assets classify as separate and community property. According to some state’s code, separated assets are any asset a spouse obtains prior to marriage, gifts, or inheritances. However, nearly all assets outside the few mentions are going to be community property. The only exception is when a Prenup has been established when it specifically states that a certain asset is assigned to a specific spouse.  Community assets will be divided unless proven otherwise. In order to keep your own assets,  you would have to prove to the court that the assets were separated from the beginning. 

Why do some states handle property in this way?

Because there are community property states, they manage property in this manner. This means that these states will presume that spouses own each other’s property equally and are jointly and severally liable for each other’s debts. This explains why the family house, furnishings, clothing, jewelry, and intangible assets are the most often divided types of property among couples. This reasoning also holds true for accumulated debt, such as credit card debt, rent, mortgage, and loan payments.

What happens if one of the spouses tries to empty accounts or transfer property? 

 During a divorce, if one spouse tries to empty the bank accounts or transfer property to a third party without the other spouse’s agreement, they will be charged with fraud. As a result, the spouse will be brought before the court to assess whether or not their activity constitutes fraud. If fraud has been established, the judge will determine the appropriate punishment. The court could choose to award the other party the amount of money that was stolen and yet provide a share to the indicted, recalculate how much the money was originally contained in the estates, divide them equally among the spouses, or give all the money to the other spouse.

Can they still award alimony to a spouse?

In some states, alimony is only granted by the court in specific situations. These circumstances include long-term marriages, physical or mental disabilities, inability to earn a stable income, convictions for aggression against family members, and parenthood of a disabled child.