Property can be one of the most distressing parts of a divorce. People are terrified about what they will keep or lose. Will they be forced to give away something precious to them, something that has been in the family for generations?
Before going into a panic about your assets, arm yourself with information. In this article, we will address many aspects of property division. We will explain how property is seen by the courts and explore the different methods used to divide assets among spouses. Afterward, we will offer alternatives, making the entire issue less frightening and mysterious.
Before moving forward, it’s important to discuss who actually owns what within a marriage. Believe it or not, the collectibles you bought after the wedding may not entirely belong to you. This is because of something called “marital property.” Definitions range from state to state, and those definitions can become quite granular. In general, however, marital property is anything purchased by either spouse during the marriage. It doesn’t matter who paid for it or who primarily used it.
Essentially, the law considers spouses primary family members. As such, it’s assumed that spouses share all assets. Income, savings, and property accumulated during the marriage belongs to both parties. Once you consider that virtually everything in the home belongs to you both, the way states divide property makes sense.
There are exceptions. Generally, gifts given from someone outside the marriage belong to just the receiver. Property that is inherited belongs only to you, as does any property you owned before the marriage. This means that your family heirlooms are generally safe in a divorce.
Property Division Models
Equal Division of Property
In this model, the court attempts to split property equally. Its goal is to give each spouse 50% of the overall marital assets. Keeping property means you will probably be forced to give up something else. Say that you are awarded the house, and it is valued at $250,000. You must find a way to give your spouse a $125,000 value to keep the split fair. Courts can get creative when it comes to such paybacks.
It can ask one partner to pay the other. You would owe your spouse half the value of the home.
It can ask spouses to trade assets. Rather than paying your partner directly, you can sacrifice other property that’s valued at $125,000. Therefore, you may lose the car, jewelry, and other items until you hit that number.
You can sell the property, avoiding the trade altogether. This may be the simplest solution. You both walk away with $125,000, and the problem is solved.
Equitable Property Division
Most states use an “equitable” model when dividing property. Florida uses this model. Many consider it the more modern, fairer system. Essentially, the court makes decisions about who deserves property and doles it out accordingly.
It considers many factors to determine who is entitled to what.
How Long Was the Marriage?
Recall that legally, married couples are family, and their assets are assumed to be part of that family. The longer you are with someone, the longer you are family, and the longer you had to accumulate assets. Simply because a couple was together for a long time, the party with less individual assets may be entitled to more of the marital ones.
Who Contributed to the Assets or Marriage?
In a divorce, the idea of “ownership” goes far beyond who paid for something. Imagine a couple with a wide divide in incomes. One is a business owner, and their company skyrocketed. The other has been a nurse for 20 years. Now consider their journey. The rich business owner was a nurse when the couple met. He was dissatisfied with his job and decided to attend business school. His husband supported his decision and helped him through his transition. The husband supported him financially throughout school and during the first few years of the fledgling business. In a situation like this, the court may believe that the husband is entitled to a good deal of the assets and savings made by the business.
Is There Evidence of Abuse?
If the court believes that someone was subject to abuse during their marriage, it may give them a greater amount of the marital assets. This serves two purposes. On one hand, it is meant to compensate them for their pain, and on the other, it punishes the abuser for their behavior.
Can a Spouse Sustain Themselves After the Divorce?
Imagine a couple where, for years, one partner was a stay-at-home parent. They remained the home’s manager as the children went from babies to older teenagers. Now, these parents are getting divorced. The at-home parent has been out of the workforce for a decade or longer. Trying to sustain themselves will be a real challenge. They will probably be given a good deal of spousal support, but will that be enough? If not, the court may give them a greater degree of the community property.
Alternatives to Court
Depending on your perspective, the above information could be comforting or devastating. Fortunately, people always have the right to make their own decisions in a divorce. You can choose to be equal, equitable, or a combination of both. You could even abandon the traditional systems altogether.
If you can work together amicably, we encourage you to do so. Any time you can avoid court in a divorce, you should. Discuss your needs with your spouse, and listen to theirs. Create a distribution plan that satisfies you both, submit it to the courts, and move on.
For many, working together won’t be so easy. Divorce is difficult, and there may be leftover resentments. For extra assistance, consider mediation. In this process, you hire a legal professional to act as a neutral third party. You meet with them several times, and you negotiate the terms of your divorce. A good mediator keeps the conversation moving and the emotional temperature low. They should have some extra psychological training that can help people truly listen to one another and come to mutually beneficial decisions.
Possibly the greatest benefit of working together is a sense of empowerment. You will have a say in every decision, and you won’t feel forced into something by an outside party.
If you’re concerned about your property in a divorce, call our firm for help. For a free consultation, call us today at (407) 315-2006 or contact us online.