When two people get married, they make a commitment not only to share their lives, but also to share their belongings and earnings as they continue through life together. But of course, not all marriages last until death and dividing property is one of the biggest tasks that gets brought before the court. Many of the decisions made while going through the process comes from distinguishing what should be considered separate property and what should be considered marital property.
Separate property is generally ruled as belonging to the individual. It consists of property and assets that each person owned individually before the marriage began along with anything they have acquired after the marriage through gifts or inheritance. In most cases, the courts rule for separate property to stay with the original owner, unless it has been intermingled with marital property. For example, an inheritance might lose its separate property status if it is deposited into a joint account.
Marital property is any property and assets acquired through individual or joint earnings or gifts or inheritances left to both people in the marriage.
How marital property is divided in a divorce depends largely on the state where the divorce occurs. There are two basic schools of thought in play; community property and equitable distribution. In community property states, it is assumed that all marital property belongs to both spouses equally. In a divorce settlement, qualifying property is split in half. In an equitable distribution state, the court decides what they consider “fair and equitable” which may or may not be an even split depending on the individual circumstances of the divorce.
The goal in following community property laws in divorce is to see that each spouse leaves with an equal share of the marital assets. This includes money in bank accounts that was earned by both spouses, property bought together, such as a home or vacation property, investments, insurance policies, and money that has been contributed to retirement accounts, as well as various miscellaneous items such as furniture.
Selling everything, and dividing all the joint property in half, in theory, seems easiest, but is not always that simple. Deciding who gets what often involves having things prioritized. If someone wants to keep the house badly, it is common for them to make negotiations to give up their share in some other property in order to keep the things they want the most.
Divorce attorneys can help their clients assert their wishes and work with a mediator as well as their spouse and their own lawyer to make decisions about community property that will help both spouses move forward.