Dividing property in a divorce has the potential to quickly become confrontational. In the honeymoon phase, couples rarely consider whether they live in a community property state or terms such as “equitable distribution.”
However, if a marriage ends in divorce, it often brings up a lot of difficult decisions. Typically, this includes discussions regarding the fair division of property shared throughout the union.
Ideally, couples are able to work amicably to decide how to split property, assets, and any debts. Unfortunately, that’s not always possible. In many cases, disputes arise or an issue about ownership and value becomes more complex.
When this happens, the spouses might work with family law attorneys to assist with negotiations or even take the case to court. In court, they ask a judge to divide the estate fairly. Still, there are 3 common factors that play into this decision.
- The type of divorce
- What property or assets you share
- The state in which you reside
The Type of Divorce
While many people don’t have an opportunity to consider what type of divorce they want, there are options for couples who are able to work together.
For instance, an uncontested divorce is when both spouses come to an agreement on the terms and file the paperwork with the court. Typically, this does not call for a formal trial. Additionally, this type of divorce helps to save you a good deal of time, so long as you have no issue dividing property in a divorce.
On the other hand, a contested divorce is the stereotype that often comes to mind. In these cases, there are disputes over key areas, such as custody, spousal support, and the division of assets. Usually, each couple hires an attorney to work with a judge who oversees the case until they reach a settlement.
Unfortunately, this often is a long, drawn-out process.
Other forms of divorce fall somewhere between these two. For instance, there are collaborative options that allow the spouses to have legal counsel without going to trial. Often, these involve mediation and arbitration.
Which option works best depends on the level of contentiousness in the situation. Dividing property in a divorce that is amicable often results in far simpler process.
What Property or Assets You Share
The division of property is a major issue throughout a divorce. One common matter is who “gets the house.” Oftentimes, state law comes into play as a couple divides property. This boils down to whether you live in a “community property” state or a “separate property” state.
Separate Property States
Separate property belongs to a single spouse. This includes something the individual owned prior to the marriage. However, it often includes inheritances or gifts received by an individual as well as the proceeds from a pension vested prior to the marriage.
Community Property States
Community property is everything that a couple earns or acquires during the marriage. For example, this would include the money placed into a joint checking account that the couples use to pay bills or debts.
Generally, property – such as a house bought with a combination of individual and communal funds – is often considered community property.
Texas is a community property state. That means that the majority of the property acquired throughout the marriage belongs to both spouses. As such, the court assists in dividing property in a divorce. However, each spouse keeps their separate property.
The State in Which You Reside
Typically, the courts handle dividing property in a divorce in one of two ways: equitable distribution or community property. Moreover, they use the same principles to divide debts.
Here’s how the division of property depends on where you live.
In many states, the court divides assets and earnings from a marriage equitably but not always equally. Additionally, some of these states might order one spouse to use separate property to make a settlement fair for both individuals.
In states like Texas, all marital property is either separate or community. Dividing property in a divorce in Texas usually means equal division between the spouses, but only for community property.
In either situation, it is also important to note that the division of assets doesn’t always mean a physical decision. Instead, the court may provide a percentage of the total value to each spouse.
Dividing Property with an Advocate on Your Side
When you need to divide assets in a divorce, it’s always good to have a divorce attorney on your side to provide legal counsel. From ensuring fair distribution to defining the terms of the agreements, your attorney pursues your best interests and maintains your rights.
If you need help dividing property in a divorce or working through any aspect of the process, contact our family law attorneys today. At your consultation, they can help you understand your options and your rights.