Divorce and Property Division: Part I

Once the decision has been made to divorce and the children have been told, it will be time to start the legal procedure. Because laws vary widely from state to state, we can't give any specifics about an individual case. What we can do is give an overview of some of the legalities and procedures you might expect.

All cases are different. You and your spouse may have spent time discussing divorce, reached the decision together, and handled all the personal, family, and financial matters together before filing the petition for divorce. Of course, that is not always the case. Sometimes one spouse files for divorce without the other spouse's knowledge. This may not be ideal, but it happens. In either case, learning your legal rights and responsibilities will keep the process on track.

Whether you have an opportunity to discuss the legalities with your spouse before filing the petition, or you receive the petition without warning, be sure to look into all the legal rights of both parties. Know the laws of your state when it comes to marital property. 

Let's take a look at a few basics to consider:

Equitable Property

Many states provide for the division of marital assets in a rather flexible manner. Property and assets acquired during the marriage are not automatically divided equally. Instead, the courts will take into account a variety of issues, including but not limited to; length of marriage, economic stability of either spouse, age and health, earning power, taxes, debts, and other burdens.

Community Property

Some states consider all assets acquired during a marriage as property of the marriage and are, therefore, divided equally between the spouses. However, this broad interpretation has its exceptions. Assets acquired by either spouse before the marriage may not be considered community property. There are also states that allow for other assets to be excluded from the marital assets. These may include gifts given, even if given by the other spouse, as well as inheritances granted one spouse. Be aware that along with the 50/50 division of assets comes the 50/50 division of debt.

These property division legalities are only what the courts will impose. Your own personal division of property and assets will also be very important. There is much to be gained by discussing, planning, and executing the division of marital property with your spouse before getting to the courtroom. Even when the petition to divorce has been filed, if both parties agree to the division of property, you can save yourself a lot of stress and money.