During any type of divorce proceeding, including where the couple involved is on amicable terms, conflicts can arise over the division of money, property, and debts. If they are unable to resolve the issue and reach a mutual agreement with the help of their attorneys, the family law judge presiding over their divorce will issue an order based on the evidence presented. While this applies only to property earned or acquired during the marriage, where you live will determine who gets what in these proceedings.
What Is Considered Marital Property?
Marital property is anything that you and your spouse bought, earned, acquired, or otherwise accumulated during your marriage. This includes:
- Real estate, including any homes, land, or shares in property;
- Home furnishings, including furniture, china, and artwork;
- Cars, motorcycles, boats, and other recreational equipment;
- Collectible and hobby related items, such as antiques and art supplies;
- Personal belongings, including clothing, jewelry, and furs;
- Financial accounts, including stocks and certificates;
- Retirement or pension benefits paid into during the marriage;
- Shares in businesses or partnerships, including supplies and inventory.
Marital property does not include anything you owned or acquired prior to the marriage, personal inheritances, or gifts. Prior to your divorce, you will need to file financial disclosure worksheets with the court, listing property and assets, as well as debts. Any loans, mortgages, credit card debt accrued during the marriage and prior to filing for divorce will also be divided between the spouses as part of a divorce settlement.
Equitable Distribution Versus Community Property
Depending on where you live, there are two ways in which the court will determine how property, assets, and debts are divided:
- Equitable distribution: Black’s Law Dictionary advises that the majority of states follow the rules of equitable distribution, which divides marital property in a way that is fair, but not necessarily even. In making a ruling, the judge in the case will generally take into consideration each spouse’s income and financial situation, any child custody or support arrangements, and the contributions each made in acquiring the property, assets, and debts.
- Community property: The Internal Revenue Service advises that there are only nine states which fall under community property jurisdiction. In these states, which are primarily on the west coast, each spouse is considered half owner of all assets and property and receives a 50 percent share in the event of a divorce. In community property states, judges have little flexibility in determining how both assets and debts will be split.
Division of marital property can have long-ranging impacts on your ability to recover from a divorce, and you should always seek guidance from an experienced family law attorney before agreeing to a settlement. Don’t hesitate to reach out to our office today for assistance with your case.
When you have met the one you want to spend the rest of your life with and are busy making plans to marry, the last thing that may be on your mind is the chance that you will end up divorced. While prenuptial agreements may seem unromantic or indicative of doubts about your relationship, the fact is that they offer definitive advantages, both in terms of protecting you and your spouse and in laying the groundwork for how you will handle your joint finances during your marriage.
Who Should Consider A Prenup?
According to Black’s Law Dictionary, prenuptial agreements are a valuable tool in helping couples gain control over their financial affairs. These generally deal with issues pertaining to your income and earnings, any land or home you may already own, retirement and pension accounts, and any shares you may own in businesses.
Unfortunately, the subject of creating a prenup is often a sensitive issue, and some couples mistakenly believe it could increase the odds that they will eventually get divorced. Nothing could be farther from the truth. In addition to marriage and divorce superstitions, there are two common myths surrounding the type of couple who uses a prenuptial agreement:
- They are wealthy, or own considerable property and assets;
- They have doubts about either their own or the other person’s ability to make a commitment.
The fact is, sitting down and having an open, honest discussion about financial issues, disclosing your individual assets and debts, and coming to agreements about how you intend to manage your earnings can actually benefit your marriage, making it less likely to end in divorce.
How To Create A Prenuptial Agreement
To ensure you are creating a fair, valid agreement that adheres to legal guidelines, both parties should seek individual legal representation prior to signing. Having your own attorney review any documents can help ensure your future legal rights are protected. There are three issues which could make a prenup unenforceable:
- Duress: A key element in making a prenup is to ensure you do it early, preferably months before your actual wedding date. The American Bar Association advises that duress, in which one of the parties feels forced or pressured into signing the agreement, can be enough reason to have a prenup declared invalid.
- Unconscionability: Another reason why a prenup may be declared unenforceable is if one party benefits considerably more than the other. This is known as unconscionability.
- Lack of disclosure: In order for your prenup to be valid, you must fully disclose all the property, assets, and debts you owe at the time it is created.
While prenups deal with how property may be distributed in the event of a divorce or separation, they may also serve as the couple’s first step in estate planning. In addition to any other agreements made, you may include instructions on how to handle financial issues in the event of death or incapacity.
Let Us Help You
Navigating through divorce proceedings within the confines of the law is important. Arrange a free consultation by calling The Law Office of Ronald L. Kossack at 480-345-2652 or using our online contact form.