After custody questions, questions about dividing property, and especially big property that’s hard to split, like a house, are some of the most common questions asked during divorce proceedings.
And these questions can be difficult to answer. A lot depends on your specific situation, what state you’re located in, and what you and your ex-spouse are able to agree upon and what you’re not able to agree upon.
Take a look at some information that can help you understand dividing property yourselves and how property may be divided for you by a family court judge.
Dividing Property Yourselves
While contentious divorces often get talked about and dramatized more, the reality is that many divorces are amicable – or at least undramatic.
If both parties want to end the marriage and are willing to work together on dividing property to get the job done, they can often do so without too much hassle.
1. Itemizing the Property
If your divorce is uncontested and you and your spouse want to try dividing property yourselves, a good place to start is simply by itemizing the property that you own.
Work together to make a list that covers anything of value that the two of you have in your possession. You can omit personal items that have little or no value to anyone else, as long as you both agree.
Once you’ve agreed on what property needs to be split up, the next thing to do is to value the property.
2. Valuing the Property
You’ll need to work on determining what the cash value of each item listed is.
Is that computer worth $400 or $500, for example?
You and your ex should be in agreement with each other about the value of each item. You’ll need outside assistance from a professional to determine the worth of large items that are hard to place value on, like:
- A house
- A business
When you have an inventory and values for each item, you can start deciding who should get what.
3. Who Gets What?
This should be relatively easy with smaller-value items like consumer electronics – just assign each item to the person who usually uses that item.
It can be more difficult when it comes to larger items like cars and houses. There may be a reason why one spouse needs to keep the house or a particular car. If not, you might agree to liquidate those items and split the proceeds.
A business can also be difficult to divide, especially if it’s a business that you both contributed to. However, you do have options – for example, one partner could buy out the other partner.
Start with the biggest items on your list and see how well you do. If you can divide up the big-ticket items without much trouble, then you probably won’t need help with smaller items either.
4. Submitting the Paperwork
Finally, you’ll need to submit your agreement to the divorce court along with the rest of your divorce documentation.
In general, if both of you agreed on a specific property division, the judge will most likely sign off on it. The exception is when there’s an appearance that one party may be taken advantage of, such as when the division is substantially unequal or when one party has an attorney and the other does not.
In those cases, the judge may deny your agreement and enforce a more equitable arrangement.
Letting the Court Decide
If you and your ex cannot come to an agreement on your own, the judge presiding over the divorce will decide for you how the property should be split.
States generally have guidelines for these types of situations.
1. Community Property States
Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states, and the territory of Puerto Rico is as well.
In community property states, all property is designated as either separate property or community property.
Separate property is the property of one spouse and it stays with that spouse. Community property is then divided equally between the two spouses.
Separate property usually includes property owned before the marriage and inheritances or gifts given to one spouse specifically. Most other assets and earnings acquired during the marriage are community property.
2. Equitable Distribution
In the rest of the states, judges practice equitable distribution.
That means that property and assets acquired during a marriage are distributed in a way that is equitable – or fair – but not necessarily equal.
For example, it’s common in cases where children are involved for the spouse who is the primary caregiver for the children to remain in the house so that the children don’t have to move. If that spouse has other assets as well, the judge may order them to pay some amount to the spouse who must leave the house in order to make the split more equitable.
In some cases, a judge can order spouses to use separate property in order to make the division of community property equitable.
It’s also important to note that a physical division is not always possible. A judge can’t award each partner half of a house, for example. What they can do is award each spouse a percentage of the value of their house.
In that case, one spouse can buy out the other’s percentage, or they can sell the house and split the proceeds in the way that the judge decreed.
Dividing property can be emotional and upsetting, but in many cases, it isn’t as complicated as it seems.
If there aren’t complex financial structures or multiple properties in play, it’s definitely possible for couples to come to an agreement on their own, or to advocate for an equitable split in divorce court.
A legal resource group like National Family Solutions can help by getting you the documents and information that you need in order to submit an agreement to the court or to advocate for yourself in court.