What Happens to a Property After a Divorce?

What Happens to a Property After a Divorce?

A marriage ending in divorce might be devastating given the overflow of emotions, not to mention the adverse psychological effects on spouses. Further, you also need to make tough decisions on dividing the once shared property, including the family home, hidden assets, earnings, and debts. 

It is a nightmare facing these circumstances, but it gets harder when you don’t have a legal advisor when disputes take place regarding the property value. For that reason, it is critical to find a lawyer who is an expert in handling property settlement issues like family lawyer Judy Ford.

Table of Contents

How to divide the property after a divorce

The property division depends on three factors, matrimonial property, non-matrimonial property, and property acquired before marriage. 

  • Matrimonial property – This refers to properties bought by both parties during their marriage.
  • Non-matrimonial property – This refers to properties bought by only one party at the time of the marriage.
  • Property acquired before the marriage – This refers to properties obtained by one or both parties prior to the marriage. 

The length of the marriage

The court has the power to determine what is matrimonial and non-matrimonial property depending on the length of the marriage. Below are some considerations to remember.

  • If the marriage is long – When the marriage took five years or more, the property owned before or during the marriage can be deemed as property of the marriage. 
  • If the marriage is short – When it didn’t last for five years, and one spouse acquired property before the marriage, then it usually isn’t shared or divided equally. 

Types of properties

The property distribution is grounded upon a separate property state or a community property state where you reside. 

Separate property

This belongs to one party, including something that was acquired before the marriage. Examples of this are inheritance received, pension proceeds, a business owned by one spouse that chartered before the union.

Marital property

Marital property refers explicitly to everything that both parties obtain during the marriage. This includes all income earned, debts incurred, and separate property combined with marital property and is impossible to split out. Regardless of the name provided in the property’s title, both spouses are still entitled to it. 

How does the court decide to divide the property?

The courts usually divide the property in two ways: community property or equitable distribution.

Community property

Some of the community property states include Arizona, California, Louisiana, and Washington. In the community property laws, the judge is responsible for determining all marital properties, either community or separate property. Once decided, they will equally divide the community property between each party. 

Equitable distribution 

Equitable distribution is also known as “common law,” wherein all non-community property states, the judge does the same classifying community and separate property. However, once determined, the marital property will be divided equitably but not equally to ensure the fair settlement of both parties. 

How does the court decide on what is equitable or not? 

Various factors need to be considered when talking about equitable distribution. Following are the measures that the court usually based upon:

  • The length of the marriage
  • The pension benefits
  • The sacrificial effort of a spouse during marriage
  • The earning and property of each spouse 
  • The health and age of both spouses
  • The consideration if there are children that needs the property while growing up

Does the spouse who is at fault with the divorce change the outcome of the property distribution?

Usually no, but if there are cases of grave abuse, then it might affect the distribution. On the other hand, dividing the property is most likely to be implicated when a spouse doesn’t take the responsibility of supporting the family or spending above the family’s income. 

Conclusion

There are instances that you can divide the property by yourselves, especially if it isn’t complicated on your part. You can start by listing your joint belongings, deciding the logical owner, and acquiring the judge’s approval. However, if you don’t back yourself with a lawyer, there might be deficiencies, and you could take property less than what you deserve. Nevertheless, it is still advisable to hire a family and divorce lawyer to help and guide you in setting out the property terms.

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