When deciding to get a divorce, you’re faced with the challenge of untangling your life from your ex’s, and that includes your finances and other assets. So how do courts decide who gets what in a divorce?
What Is Considered an Asset?
First, let’s consider what the courts define as an asset.
An asset can be anything of value that is owned by either party in the marriage. This includes physical property, such as:
- Real estate
It also includes intangible property, such as:
- Investment accounts
- Retirement benefits
- Stocks and bonds
- Insurance policies
The Court Process for Dividing Assets
The division of assets in a divorce is typically decided by the court, because this can be a very difficult subject for finding common ground.
When deciding how to divide assets, the court will consider a number of factors, including:
- The length of the marriage
- The age and health of each party
- Each party’s earning potential
- Each party’s contribution to the marriage
- Any debts each party owes
The court will typically order an “equitable” division of assets, which means that the assets will be divided in a way that is fair, but not necessarily equal. In some cases, the court may order an “equal” division of assets, which means that the assets will be divided equally between the parties.
How Do Courts Handle Assets Not Easily Divisible?
Some assets, such as a house or other property, may not be easily divisible. Here are some common assets that may require a longer process to find an equitable division.
If your spouse wants to keep the house you share, you may be able to negotiate a buy-out of your interest in the property. Alternatively, you may be able to reach an agreement with your spouse about how the mortgage and other expenses will be paid.
If you do not come to an agreement, the court may order the house to be sold and the proceeds to be divided between you and your spouse.
You will need to provide the court with information about the value of your property, as well as any mortgage or other debts that are owed on the property. The court will then decide how to divide the equity in the property.
You may also be able to negotiate a division of other property, such as vehicles, furniture, and other belongings. If you can’t reach an agreement with your spouse about how to divide these things, you may have to sell them and split the proceeds.
It is also important to keep in mind that, even if the court orders an equal division of assets, one party may end up with more debt than the other. This is why it is important to carefully consider all debts and liabilities when dividing assets in a divorce.
If you and your spouse own a business, the court will first determine whether the business is an asset that can be divided. If the business is considered an asset, the court will then decide how to divide the business.
The court may order that the business be sold and the proceeds be divided between the parties. Alternatively, the court may order that one party buy out the other party’s interest in the business.
In these very complicated cases, it is important to get professional help to determine the value of the business and to develop a plan for dividing the business between the parties.
Retirement accounts, such as 401(k)s and pensions, are considered assets that can be divided in a divorce. The court will first determine how to value the retirement account. The court will then order that the account be divided between the parties.
How Can I Protect My Assets in a Divorce?
If you are concerned about protecting your assets in a divorce, there are a few steps you can take.
- First, you should try to reach an agreement with your spouse about how the assets will be divided. If you can reach an agreement, you can submit a proposed settlement to the court for approval.
- Second, If you’re not able to find common ground, you can also ask the court to protect your assets. For example, you can ask the court to order that your spouse pay a portion of your debt as part of the debt division.
- Third, work with a reliable divorce attorney who can help show the court why you deserve a larger share of the assets.
You should also keep in mind that, in some cases, the court may find that one party is entitled to a greater share of the assets because of factors like marital misconduct or contribution to the marriage.
Community Property vs. Separate Property
In almost every state, assets acquired during the marriage are considered community property and are subject to equitable distribution when a couple divorces. That means that a court will divide the couple’s assets in a way that is fair, but not necessarily equal.
However, there are some exceptions to this rule. Anything that either spouse owned before the marriage is usually considered separate property and generally goes to that person in a divorce. Gifts or inheritances given to just one spouse during the marriage are also typically considered separate property.
If you owned property prior to your marriage or received an inheritance during your marriage, you may be able to request the court to award you separate property. To request separate property, you will need to prove that the property is not community property.
According to California state law, any property acquired after the date of separation (the date that one spouse decides to end the marriage) is considered separate property. However, you must prove that some act of physical separation was combined with other actions to demonstrate that the spouse decided to end the marriage.
Some assets, such as a 401(k) account or a pension, may have both marital and separate property components. In that case, the court will usually divide the asset between the spouses based on its fair market value.
If you’re going through a divorce, it’s important to understand how your assets will be divided and be prepared. If you’re considering a divorce and need help protecting your assets, contact Monarch Family Law for a free consultation. We’ll discuss your options and our experienced family law attorneys will help you with this difficult process.