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The legal process for divorce determines how a couple’s jointly acquired or co-owned property gets divided. It can be a heated topic in divorce courts. Since much of the process is dictated by state law, it is crucial to have a legal representative. Explore a basic overview of how most courts determine the marital divide.
Determining What Gets Split and What Doesn’t
Every state handles property division according to its established laws. Under these laws, however, is a definition of the type of things that are subject to splitting between spouses. In most instances, items – both tangible and intangible – that were accumulated by the couple while married is subject to being divided between them. Examples of property include:
- Vacant land
- Retirement accounts
- Bank accounts
- Stocks and bonds
It is important to note that debt also gets split between spouses in the same way as property. Anything either spouse owned before the marriage remains in that person’s sole ownership.
The Split in Community Property States
The state laws dictate how couples separate property during divorce. In community property states, it means that each gets exactly half of the marital pot. In this system, it does not matter what role a spouse played in the marriage or how much money they earned. Everything gets divided down the middle between them.
Division in Equitable Distribution States
Conversely states that are not community property states divide property equitably. During this process, a judge must determine a fair split. Courts under this process examine who did what for the health of the relationship. Under this, a spouse who stayed home with kids is not considered less worthy than the one who brought in the income. In some states where divorce is based on fault, a judge may consider which spouse was more responsible for the demise of the relationship as well.
Prenuptial Agreement Effectiveness in Property Division
A prenuptial agreement, if prepared according to the law, is a legally binding and enforceable document signed by the couple before marriage. In it, the couple should have agreed to how they were going to define marital property and divide it. If a couple has a prenuptial agreement, it will take precedence above what and how a judge might divide property. If one spouse decides to actively seek to have the prenuptial agreement invalidated during a divorce, it may significantly alter the timeframe for getting a final decree.
Splitting up after years of marriage is never something a couple looks forward to doing. Understanding some of the basic ways a court may then divide their marital property may help when it comes to why a family lawyer makes the suggestions they do.