Understanding How Property and Assets are Divided in a Divorce

Divorce is already a stressful process, and is often further complicated by the division of assets and property in a marriage. When pursuing a divorce settlement, you should clearly identify marital assets, and consider any other components that may affect or contribute to property division. Laws vary by state, so this is something you should talk over with your lawyer.

Identifying Marital Assets

In a divorce settlement, only marital property is subject to division. This includes any property and assets acquired during the marriage. Separate property, which is considered any property you or your spouse owned prior to the start of the marriage, will remain with the existing owner.

There may be some assets or property acquired during a marriage that are not considered marital assets. This may include something inherited by only one of the spouses during the marriage.

Community Property

Community property is a marital property regime under which most property, assets and earnings acquired during the marriage is owned jointly, and thus, divided equally upon divorce. Unless there is evidence proving otherwise, property is presumed by law as having joint ownership. The community property jurisdiction is only used by a handful of states, including California, who strictly mandates a 50/50 division of community property.

Equitable Division of Property

Equitable division of property, used by majority of states, mandates that all assets and property accumulated during a marriage are divided fairly. This system takes into consideration both marital and separate property, as well as the circumstances involved. For example, if one spouse has considerably less separate property than the other spouse, more of the marital property may be allocated to the spouse with less separate property. Though equitable division may not be equal, its typically considered to be fair in dividing and appointing assets in a divorce settlement.

Personal Injury Settlement in a Divorce Case

If you or your spouse has been involved in a personal injury case, the settlement may be subject to division, but only if reached before the divorce is finalized. If you wish to divide the settlement, only parts of the settlement may be considered a joint asset. In a personal injury settlement, a number of the damages being compensated for are subject solely to the party awarded the settlement and, therefore, may not be divided. Conversely, compensation for damages such as lost wages are usually considered a marital asset and may be divisible. The rules regarding personal injury lawsuits in a divorce vary greatly by state, so a lawyer in your area such as the divorce lawyers Peoria IL locals trust will help you to further determine what can and cannot be divided.

Division of Marital Debts

Marital debts are treated much like marital property, in that any debts accumulated during the marriage are subject division. Any debts existing before the marriage will usually remain the responsibility of the spouse that accumulated them.

Smith and Weer LawThanks to authors at Smith & Weer P.C.  for their insight into Family Law.