There is an old myth that division of property in a divorce is 50/50, meaning each party gets 50% of the marriage. This is not accurate. There are many factors that judges consider when it comes to the division of assets, and judges must consider certain statutory guidelines when determining how property will be divided upon divorce.
Before the judge begins to split the property between the two parties, she must first determine what is marital property and what is separate property. Separate property consists of property that was owned prior to the marriage or property that was inherited during the marriage.
For example, if a person owned a house before getting married, then they would be able to keep the house upon divorce. Likewise, if one spouse’s parent dies during the marriage and they leave a car to their child, then the car will remain the child’s property after the divorce.
All property that is not separate property is marital property, which is divided between the parties upon divorce.
Equitable distribution means just what is sounds like. Family law judges attempt to distribute property equitably between the parties, meaning that each party should come away with roughly the same amount of property as the other person.
In determining what is equitable, the judge will look at several factors. Examples of these factors include:
The judge can also consider any other factors she determines relevant.
If there are children involved in a divorce, the judge will heavily weigh their needs in determining the division of assets.
For example, the judge might award possession of the home to the person who is granted primary custody of the children in order to prevent them from having to move, change school districts, etc.
Determination of child support and custody take priority over the distribution of marital assets.
When considering a divorce, most people only think about what property they will receive. However, any debts that are incurred during a marriage are also divided using equitable distribution.
For example, if the couple had a credit card which both parties accessed to make purchases during their marriage, then the balance of the credit card may be divided between the parties.
Likewise, mortgages, car notes, personal loans, and other debts will be split up in an equitable way by the judge.
During a divorce, attorneys for each party will investigate the finances and property of each spouse.
If it is determined that one spouse hid assets (for example, transferred a large amount of cash into a family member’s bank account) or intentionally destroyed assets, such as damaging the home to decrease its value or throwing away valuable jewelry or works of art, these factors will be considered during the divorce proceedings.
Specifically, the judge will subtract the value of those items from what is awarded to the guilty spouse from his or her share of the property.
While it is tempting to conceal assets to make sure that they are not awarded to the other spouse during a divorce, this is not advisable under any circumstance and it will likely be discovered during the divorce proceedings.
Division of assets is always a difficult subject, and each party has a strong interest to protect their economic security during a divorce. It is crucial to hire strong, experienced attorneys who can fight for your fair share of assets upon the ending of a marriage. Book us on Attornify for a free consultation today.