Navigating Property Division During a Divorce

Divorce can be a difficult and emotionally challenging time for any couple. Along with the emotional upheaval, there are also a multitude of legal issues to consider, including how to divide property and assets. Property division is one of the most complex and contentious aspects of any divorce case, and it can be especially difficult if there are significant assets or if the couple has been married for a long time.

In most states, property is divided according to the principle of “equitable distribution.” This means that each spouse is entitled to a fair share of the marital property, which is generally defined as any assets acquired during the marriage. This can include everything from the family home and investment accounts to retirement plans and business interests. However, “fair share” does not necessarily mean an equal division of property. Instead, the court will consider a variety of factors to determine what is equitable, including the length of the marriage, the contributions of each spouse to the marriage, and the earning potential of each spouse.

If you are going through a divorce and are concerned about property division, it’s important to understand the legal process and your rights. In this blog post, we will provide an overview of property division during divorce, including how assets are classified, the factors that courts consider when dividing property, and steps you can take to protect your assets. Whether you’re just starting the divorce process or are in the midst of negotiations, this guide can help you navigate the complex landscape of property division and ensure that you receive a fair and equitable settlement.

How Assets Are Classified

When it comes to property division during divorce, it’s important to understand how assets are classified. This is because different types of assets may be subject to different rules and considerations when it comes to dividing them.

In general, assets are classified as either separate property or marital property. Separate property is property that was acquired by one spouse before the marriage or acquired during the marriage through inheritance or gift. Separate property is generally not subject to division during a divorce.

Marital property, on the other hand, is property that was acquired during the marriage. This can include assets like the family home, vehicles, retirement accounts, investment accounts, and any other property that was acquired during the marriage. Debt that was acquired during the marriage is also subject to division.

It’s important to note that the classification of assets can become complicated in certain situations. For example, if separate property is commingled with marital property (for example, if an inheritance was deposited into a joint bank account), it may be considered marital property and subject to division. Similarly, if one spouse’s separate property increases in value during the marriage, that increase in value may be considered marital property and subject to division.

Another factor to consider when it comes to asset classification is the state where the divorce is taking place. Different states have different rules when it comes to property division during divorce. Some states follow the principle of equitable distribution, which means that assets are divided fairly, but not necessarily equally. Other states follow the principle of community property, which means that assets are divided equally between the spouses.

In community property states, all property acquired during the marriage is considered community property and is subject to equal division. This includes income earned by either spouse during the marriage, as well as any property acquired using that income. Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In equitable distribution states, the court will consider a variety of factors when deciding how to divide property. These factors may include the length of the marriage, the contributions of each spouse to the marriage, and the future earning potential of each spouse. Equitable distribution states include most states in the United States, with the exception of the community property states listed above.

Overall, understanding how assets are classified during divorce is an important part of navigating the property division process. It can help you understand what assets may be subject to division and what your rights and options are when it comes to dividing property with your spouse. If you have questions about asset classification or property division during divorce, it’s important to work with an experienced family law attorney who can provide guidance and representation throughout the process.

What Do the Courts Consider When Dividing Property?

When a court is deciding how to divide property during a divorce, they will consider a variety of factors to ensure that the division is fair and equitable. The specific factors that the court will consider can vary depending on the state where the divorce is taking place, but some common factors include:

1. Length of the marriage: The court will consider how long the couple has been married. Generally, the longer the marriage, the more likely it is that the property will be divided equally.
2. Contributions of each spouse: The court will consider the contributions of each spouse to the marriage, both financial and non-financial. This includes factors like each spouse’s income and earning potential, as well as any contributions made to the marriage through homemaking or child-rearing.
3. Future earning potential: The court may consider the future earning potential of each spouse. This can include factors like education, job skills, and work experience. If one spouse has significantly greater earning potential than the other, the court may adjust the property division to account for this.
4. Health and age of each spouse: The court may consider the health and age of each spouse, particularly if one spouse has health issues or is close to retirement age.
5. Tax consequences: The court may consider the tax consequences of dividing certain assets and debts. For example, dividing a retirement account may result in tax penalties, so the court may take this into account when deciding how to divide property.
6. Fault in the divorce: In some states, the court may consider fault in the divorce when making decisions about property division. For example, if one spouse committed adultery or was abusive, the court may award a larger share of the property to the other spouse.

It’s important to note that these factors are not the only considerations that the court may take into account when dividing property during a divorce. Other factors may also be relevant depending on the specific circumstances of the case.

Ultimately, the goal of property division is to ensure that each spouse receives a fair and equitable share of the marital property. This means that the court will consider a variety of factors to make sure that the division is fair to both parties. If you have questions about property division during divorce, it’s important to work with an experienced family law attorney who can provide guidance and representation throughout the process.

How to Protect Your Assets During a Divorce 

Going through a divorce can be a difficult and emotional process, but it’s important to take steps to protect your assets during this time. Here are some steps you can take to protect your assets during a divorce:

1. Get organized: Before you start the divorce process, it’s important to gather and organize all of your financial documents, including bank statements, tax returns, retirement account statements, and any other documents related to your assets and debts.
2. Open separate accounts: Consider opening separate bank accounts and credit cards in your own name. This can help ensure that your spouse doesn’t have access to your individual funds.
3. Document your assets: Make a list of all of your assets, including real estate, vehicles, investment accounts, and other valuable property. Take pictures or video of your property to document its condition.
4. Be careful with joint accounts: If you have joint accounts with your spouse, be careful about how you use them. Avoid making large purchases or transferring large sums of money without consulting with your attorney first.
5. Consider a prenuptial or postnuptial agreement: If you have significant assets or are concerned about protecting your assets during divorce, consider entering into a prenuptial or postnuptial agreement. These agreements can outline how assets will be divided in the event of divorce.
6. Consult with an attorney: It’s important to work with an experienced family law attorney who can provide guidance and representation throughout the divorce process. Your attorney can help you understand your rights and options when it comes to protecting your assets during divorce.

It’s important to note that taking steps to protect your assets during divorce doesn’t necessarily mean that you’re trying to hide assets from your spouse. It simply means that you’re taking steps to ensure that your assets are protected and that you receive a fair and equitable share of the marital property. If you have questions about protecting your assets during divorce, consult with an experienced family law attorney who can provide guidance and representation throughout the process.

Daytona Beach Property Division Attorneys

Navigating property division during a divorce can be a complex and emotional process. It’s important to work with an experienced family law attorney who can provide guidance and representation throughout the process. At Ross & Andreassi, we are dedicated to helping our clients defend their rights and ensure that they receive a fair and equitable share of the marital property.

Our attorneys have extensive experience handling complex property division cases and can help you understand your rights and options when it comes to protecting your assets during divorce. We work closely with our clients to develop customized strategies that address their unique needs and goals. Whether you are concerned about protecting your assets or ensuring that you receive a fair share of the marital property, we are here to help.

If you are facing a divorce and have questions about property division, contact Ross & Andreassi today to schedule a consultation with one of our experienced family law attorneys. We are here to help you navigate the process and defend your rights every step of the way.