Before talking to an attorney, it is helpful to become familiar with a few legal concepts and legal terminology such as: Division of property, community property (marital property), separate property, and equitable distribution.
People should consult a family law attorney early in the divorce process as this may preserve an individual’s financial well being. This article does not constitute legal advice.
While internet research is helpful, everyone should understand that each state has different divorce laws and legal terminology. There are, however, basic similarities in divorces, and though the terminology may be different, the basic principles in the divorce process are relatively uniform.
Division of Property
In simplistic terms, community property can be thought of as "...all property and profits (plus debts) acquired during marriage..." [Nolo's Plain-English Dictionary]. Yet, there are other factors which can affect whether or not something really is community property.
In a short-term marriage, with no children and little community property, it can often be easy to obtain a quick divorce.
However, long-term marriages, according to “Divorce Info Center” at cicilialaw.com, will often bring more complex issues into the mix, such as:
- Personal Property (jewelry, clothing, cars, and other things)
- Real estate
- Children
- Businesses
- Large or concealed debts
- Trust funds
- Assets in other states
- Investments
- Pensions
- Joint and separate accounts
In complex situations, a husband and wife may be unable to agree upon a division of assets without the help of a divorce specialist who deals with these issues on a daily basis.
Equitable Distribution of Community Property
Equitable distribution means a “fair” distribution. Many states start with the presumption that “equitable means equal” but “other factors may contribute to an unequal distribution that is still considered equitable.” [Nolo’s Plain-English Law Dictionary]
Though every state has their own divorce laws, many states consider factors like the following when making a fair division of community property assets:
- How many years the couple has been married (or in a civil union)
- Prenuptial agreements
- Ability of each person (usually the wife) to earn their own living after the divorce
- Age and health
- What each person has contributed to the marriage (in monetary terms)
- Tax consequences of the division
- Debts and liabilities
There are many other considerations that may affect distribution.
Separate Property
What is separate property? Separate property is any asset that is owned by just one spouse and is usually not divided between the spouses during the divorce process.
Sometimes, separate property becomes co-mingled (put into the family’s general fund) and might be considered community property. Divorce lawyers will be able to explain these special circumstances.
Examples of Separate Property:
- Gift or Inheritance given to one spouse
- Personal injury settlements given to one spouse
- Things that were owned by one spouse before the marriage, such as a business, a home, or a pension
- Property purchased during the marriage by one spouse with their own (separate) money
When large assets, debts, or children are involved, it is important that each spouse has their own attorney to represent their interests.
Other Division of Property Issues
Division of property involves the distribution of money and other assets associated with the time span of the marriage.
Here are some of the other issues that must be settled during the divorce process, but are related to life after divorce:
- Alimony or spousal support
- Child custody and visitation
- Child support payments
It is important for each spouse to retain a rational and businesslike temperament throughout the divorce process. There are always many compromises which must be made on the part of both the husband and the wife.
Understanding some of the terminology and concepts associated with division of assets may make the divorce process easier for everyone.
Information from this article is not intended to be a substitute for advice from a lawyer, financial planner, therapist, or other professional. Please consult a lawyer or other professional for specific advice.
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Resources:
Ciciliano & Associates. "Division of Property", 2009. cicilialaw.com
Ciciliano & Associates. "Divorce Info Center", 2009. cicilialaw.com
"Nolo's Plain-English Law Dictionary." Nolo Legal Solutions for You, Your Family, and Your Business, 2009. nolo.com
Christina Gregoire - Christina Gregoire writes about divorce, fashion, and baby boomers. Her forte is explaining complex ideas in simple language.
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