A divorce is often riddled with uncertainty and emotionally challenging moments. There are likely many aspects of the process itself that are unknown until you go through them, and it can be beneficial to speak with a family law attorney.
One main component of divorce is dividing your marital property, assets and debts. If you live in a community property state, the court distributes everything evenly between the spouses. However, if you live in a state that subscribes to an equitable distribution process, then you may be surprised to know it does not mean equal. Get a basic idea of how a court divides property equitably between divorcing spouses.
Equitable and Equal Are Different
Equal means both spouses come out with the same share. This means that you would each start your single life with the same amount of cash and debts. Splitting things equally does not always mean it turns out to be fair. This is where states who utilize equitable distribution stand. In these states, the court decides how to split the marital assets and debts fairly. You and your spouse may still come away with a relatively equal share, but in many cases, one side gets more than the other.
The Factors the Court Considers
When a couple divorces with children, the court decides what is best for the kids when determining custody and visitation. The same is relatively accurate when it comes to an equitable division. The court examines documents and statements submitted by each party to get a clear picture of the way the marriage functioned. Some of the elements the court uses to determine who gets what, include:
- The emotional contribution of each spouse to the marriage
- The sacrifices each spouse made to better the marriage
- The reasons the marriage ended
- The financial resources of each spouse via a job or non-marital assets
If you and your spouse have a prenuptial agreement, the judge will use the terms you agreed to in that document to divide the money.
A Spouse’s Infidelity
Many states have a no-fault divorce process meaning that the parties agree their marriage is broken and cannot be fixed. However, some states still allow spouses to give a specific reason or grounds for divorce. In some instances, a judge may consider this when determining property division. For example, if you claim your spouse cheated, and you can prove it, the judge may want a special counting of the money your spouse spent on the affair. The court may order your spouse to restore that money to you and take on the debt associated with the infidelity.
Splitting marital property is a sticking point in quite a few divorces. It helps to have a basic understanding of how your state operates.