Property Division in Divorce
Figuring out finances after divorce is one of the most challenging parts of this life transition. Couples often spend years building up assets and financial security, but this arrangement no longer applies once the marriage ends. Determining how to divide property in a divorce is a crucial matter, and one that is prone to provoke disagreement, especially if one party believes he/she contributed a greater share of the couple’s assets and seeks the lion’s share of the marital assets. An individual’s financial security often rides on the how assets and liabilities are divided, and ideally, the parties are able to negotiate a fair settlement on their own. Taking this route is more likely to leave both spouses feeling they received the appropriate share of the marital estate. If a couple turns to a court to decide this issue, however, the legal standard of equitable distribution will guide its decision, and this standard refers to the rebuttable presumption that marital property should be divided equally, but most importantly fairly. Thus, a court will deviate from an equal division if the circumstances indicate it would be unjust or unfair to do so. A discussion of how courts evaluate whether equal distribution is fair, and what assets are considered marital property, will follow below.
Evaluating Equal Distribution
In divorce proceedings, courts are empowered to divide all marital property and liabilities (debts), which usually means each spouse will get some mixture of both shared property and debt so one person is not left with all the financial obligations but lacking the resources to pay them. Further, only marital property is subject to distribution, and separately-owned property remains with the spouse that owned it prior to the marriage. Courts consider a number of factors when deciding whether the distribution should be unequal, including:
- the contributions of each spouse to the marriage, including childcare and homemaking;
- the length of the marriage;
- whether one spouse paused his/her career or education;
- the contribution of one spouse to the other spouse’s education or career opportunities;
- whether one party wants to retain a specific asset from interference or claims by the other spouse, such as a business or professional practice;
- how much each spouse contributed to income and the accumulation of debt;
- the desirability of keeping the marital home for the benefit of children; and
- actions by either party to intentionally waste or destroy marital assets after the divorce was initiated or during the two years prior.
Knowing which assets are considered part of the marital estate is central to understanding the type and extent of the property that may be divided. Marital property is considered to be all of the following:
- assets and debts acquired during the marriage, both jointly and individually;
- any enhanced value in non-marital assets due to contributions from either party, or through the use of marital funds or assets;
- gifts between spouses during the marriage; and
- all vested and unvested rights in retirement accounts, pensions, insurance plans and the like.
In addition, all real and personal property owned by the parties as tenants by the entireties (ownership available to married couples with right of survivorship) are presumed to be marital property, though this can be contested.
Contact an Orlando Divorce Lawyer
The untangling that comes with divorce is not easy, and property division is a key issue that couples need to know about and understand. The Donna Hung Law Group understands how stressful and overwhelming divorce can be, and is dedicated to providing their clients with the representation they need to get the best possible result and move on with their life. Contact the Orlando law firm at (407) 999-0099 to schedule a confidential consultation.