Divorce Finances 101: How Finances Are Divided Between Parties

dividing finances in divorce
Jamie Kurtz

By Jamie Kurtz | Dec 7th, 2021

When partners decide to dissolve their marriage, they are faced with an important question – how to calculate the division of assets in a divorce? This is an obvious concern for couples as they may have different ideas about a fair financial division in divorce, even if they are on good terms with each other.

Because every state has its own set of laws that affect asset distribution during a divorce, it is hard to give a definite answer to this question. That is why we created this article to provide you with helpful information regarding this and other questions that might arise while planning a divorce.

Separation and Divorce – Why These Terms Matter

While most people focus on the date of divorce, the date of separation can play an equally important role in the division of marital assets. The definition of the “date of separation” may be different from state to state, but it often refers to the date when one of the parties moves from their home to live separately with the intent of ending the marriage. You can also learn more about the legal differences between separation and divorce.

If a partner moved out but decided to end the marriage later, the judge can consider other evidence to verify the date of separation. It can include the date when a person hires a lawyer or files for divorce. 

So, are assets split at separation or on divorce? The answer is – all the income earned after the separation is considered each partner’s separate property. This is an important aspect to know to avoid any misunderstandings and other disputes in the future. People are often surprised that money acquired after separation is not considered part of the marital fund.

Different Types of Divorce and How They Affect Property Division

Property division in divorce can differ depending on the type of divorce the couple decided to proceed with. Family law distinguishes two main types of divorce: uncontested and contested. 

Uncontested Divorce

Let’s look at a situation when partners come to an agreement on all the terms of the divorce, e.g., go for an uncontested scenario. This is often a preferred option among future divorcees as it allows them to save money on court costs, legal fees, and attorney services. If this is the case, spouses settle their differences, and the court usually accepts them without any questions. However, such scenarios can result in a divorce without splitting assets fairly.

Contested Divorce

This is the type of divorce you might think of when imagining the whole process. Such a divorce occurs when partners cannot reach an agreement on important matters such as the division of marital property after divorce. They often hire lawyers to represent their interests, and the judge gives out the final ruling. 

Somewhere in the Middle

Couples can also settle their differences through mediation or arbitration. Both these options allow spouses to save on court expenditures while providing them with a platform to negotiate important matters such as the division of property during divorce with the help of a neutral third party.

How Courts Divide Property?

Everything depends on the state law. In the majority of cases, courts follow one of two approaches regarding the division of property in a divorce settlement: community property and equitable distribution.

Community Property

Some states, such as Texas, Arizona, and California, are community property states. This means that the judge sees all the marital property in two categories: community and separate property. 

Community property refers to the assets that were acquired by the spouses during their marriage. The judge will divide this property equally between both partners. 

Separate property refers to the assets that belong to one spouse. This includes things owned prior to the marriage, gifts, and inheritances. 

Equitable Distribution

Also known as “common law,” equity distribution states identify community and separate property. However, the division of assets during divorce is performed based on the principle of equity or fairness. This does not necessarily mean an equal distribution of property rights and finances.

The House

This is one of the most pressing issues for people considering a divorce – who gets the house? There is no easy answer as everything depends on the circumstances. Let’s take a closer look at potential scenarios regarding divorce splitting assets, specifically a house.

The House Was Acquired During Marriage

In this case, neither spouse usually has a considerable claim for the property. So neither partner can be forced to leave the house by their spouse. However, it is possible to request a temporary order to define who remains in the house while the divorce is pending. If spouses cannot reach an agreement, the judge decides who gets the property.

Partners Have Minor Children

In this scenario, the judge typically follows what is in the best interest of the children. This means that the primary caregiver is highly likely to retain the house after divorce.

One Spouse owns the House With No Minor Children

This case often depends on the state laws regarding property rights in divorce. If spouses reside in a community property state, chances of the owner of the house getting to keep it during and after the divorce are extremely high. However, the other partner may provide evidence that marital funds were used to pay for the house, which a judge can consider to decide what is fair and equitable.

Tips on How to Prepare for Property Split in Divorce

If you are going through a contested divorce, your attorney will take care of identifying the value of the property, potential spousal support, etc. However, if you are trying to settle things without the involvement of a lawyer, these tips may help.

Prepare for Negotiations

First, it is advisable to prepare for negotiations with your partner regarding divorce and sharing assets properly. You can calculate divorce money split yourself if you make a list of your belongings, value the property or hire a property appraiser, and agree on the owner said assets. However, there are other options, and you can always ask for professional help.

Mediation

This is an excellent option for spouses who want to avoid court hassle but need someone to settle their issues. Private mediators are professionals who review both partners’ claims and property rights while providing their advice on how income is divided in divorce.

Arbitration

In this case, a professional, who acts as a private judge, is hired to predict what decisions a traditional judge would make. However, both partners must agree to honor the conclusion of the arbitrator and follow it. This is an unconventional yet pretty popular option.

Final Thoughts

The division of finances and assets is a complicated process, but knowledge is power. That is why it is important to check your state’s family law regarding property division and make decisions based on this and your individual circumstances. Likewise, if you are not experienced in the division of property matters, it’s best to hire a lawyer to protect your interests in a divorce.

Jamie Kurtz

Jamie Kurtz


Jamie Kurtz is a divorce attorney and a member of the State Bar of California. She’s a co-founder of a law company helping people with uncontested divorces and a contributing writer for OnlineDivorce.com, a web-based service for divorce papers preparation.

 
 
 
 
 
 
 
 

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