If you are going through a divorce, you might wonder what will happen to the things and property that you have accumulated throughout the marriage. This includes the house, of course, but it also includes your vehicles, any boats or recreational vehicles, the furniture, retirement benefits, a business that you both own, and anything else that you have. While there are some differences in how various states divide assets in a divorce, the basic premise is similar no matter where you live. Read on to find out about the division of assets or, if it comes down to a court case, how the court will likely do it.
The Process for The Division of Assets
You and your spouse should sit down and make a list of all of your property. Note that there are two types of property, community and separate:
Community property is property that the two of you have accumulated during the marriage. It generally includes items that you buy with shared and separate funds. For example, if you went into the marriage with $100,000 of your own money and you and your spouse bought a $250,000 home using your nest egg and a mortgage that you both signed, the house is most likely going to be considered community property.
Separate property is property or funds that you entered the marriage with (such as the $100,000 mentioned above). It can also be money that you received from an inheritance, even during the marriage, gifts given only to one of you, and anything that either of you purchased with that separate property.
While you’re at it, make a list of your debts, because any community debts will need to be shared between the two of you in some equitable way. If you have separate debts, list those, too; in some cases, they might be considered community debts.
Keep those definitions in mind as the two of you compose your list. If there is some dispute over whether something is community or separate property, mark it down and a legal advocate, lawyer, or judge can help you figure it out.
Try to Compromise on Your Own
The least expensive way to handle the division of assets is going to be to decide amongst yourselves. The main problem with this is that one of you might end up getting the short end of the stick. Sitting down with a legal advocate or a mediator can help you determine what’s fair.
There are many ways that a compromise might go. Usually, but not always, the person with primary custody of the children (if applicable) gets the house. That person might need to buy out the other person if there is equity in the home. Or they might take on additional community debt in order to make it more fair. Usually, each spouse will keep the vehicle that they normally use. If you have more or less than two cars, however, that might make things more complicated. Vacation homes, boats, timeshares, and retirement funds must also be considered. If you share a business, there are a few different options ranging from dissolving it and selling to continuing to run the business together. You will have a lot to talk about, and a legal resource group or advocate can help.
Find Out Your State’s Rules
The specifics on the division of assets will depend on which state you are in. In some states, for example, community property is divided in half and separated property goes to its original owner. In others, however, a judge can decide what is fair. That might mean that the higher-earning spouse gets more property because they presumably paid more into it. This is something to discuss with your legal advocate or lawyer so you know what the rules are in your state.
It’s helpful to note that when community property is divided, it’s usually by total value. So rather than forcing the spouses to sell the house and split the profits, one spouse might get the house and the other will receive property that is equal in value to the equity in the home. Be aware that the same will go for debts: Each spouse will be responsible for some of the community debt, with the higher earner typically needing to pay more.
What Not to Do
There are some things that you should know ahead of time not to do. Some people are desperate for the house or other property and will do things that are illegal or immoral in order to try to make that happen. Be aware that if a judge finds out you have done either of these two things, it will reflect poorly on you and you will probably not end up getting whatever it was that you were trying to achieve.
The first is changing the locks on the house and forcing your spouse to live elsewhere. Unless and until a judge has said otherwise, you both have an equal right to the house pre-divorce (or pre-temporary judgment). Changing the locks or otherwise forcing your spouse to leave is not going to help your case or help your side in the division of assets.
The second is falsely claiming that your spouse is abusing, stalking, or otherwise mistreating you in an effort to get a restraining order (and to get him or her out of the home). This is another mistake that will likely cost you the house if a judge finds out. (Of course, if your spouse is actually abusive, you can and should report it!)
National Family Solutions Can Help
If you are hesitating to complete your divorce because you cannot afford an expensive attorney, National Family Solutions can help. We will help you get the fair divorce settlement you deserve. We can help with division of assets and property as well as child custody and other issues pertaining to your divorce. Our fees are a fraction of the cost of a private attorney, and we take clients in all states. Contact us today to find out more.