Common Questions About Property Division During a Divorce

man and woman taking off rings

Divorce can be a long and complicated process, especially regarding the division of property or assets. This process is emotionally-charged, time-consuming, and challenging for people who have been married for years. If things are particularly sour, it’s common to panic about losing essential items such as family heirlooms. With all of this in mind, knowing what questions you need to ask before getting into it is crucial. You should be familiar with a few terms before the process starts to make it easier. So, to help you out, we have put together a list of common questions about property division during a divorce, and we hope you find it helpful.

What’s marital property?

The first question to ask is what exactly is considered marital property. Or rather, how the court views a property in general. The property is split into three categories in court: marital property, divisible property, and separate property. Marital property consists of debts, assets, and income both spouses accumulated during the marriage. Divisible property consists of the assets that spouses accumulated in between separating, and the court completes the property division process. Separate properties are premarital property, debts, and any other investments, as well as any gifts or inheritances, and your partner doesn’t get any share of your separate property. Understanding these three categories’ differences is essential and should be cleared up first. Understand real estate and divorce is a rather complicated topic too, but you can generally guess which of the three categories something will fit in. So, please research before it’s time to go to court.

judge looking at a couple
Understanding the difference between the types of property can help understand how a court divides it.

What’s equitable distribution?

To put it simply, equitable distribution is the process of dividing marital property and divisible assets in court. If we lived in a perfect world, you and your partner would negotiate the division of assets without involving the courts. If you can’t reach an agreement, the court intervenes and ensures the assets are split according to the equitable distribution theory. Equitable distribution means all assets are split 50 – 50 unless the strategy ends up unfair or unequal. This is based on several factors: how long the marriage lasted and each spouse’s age, debts, income, and property. Mental and physical health also play a part, and also tax associations are associated with property division. And yes, this means that you might end up out of your marital home by the end of the process. Experts from note that you should be ready for a quick move during a divorce.

Can a nuptial agreement protect your assets?

Nuptial agreements can occur before (prenup) and during a marriage (postnuptial). Through these agreements, you and your partner define which assets are considered marital and which are considered separate. So, yes, through a marital agreement, you can decide which of your assets are considered separate and protect your assets. If you have any heirlooms or other belongings you value above everything else, ensure they are regarded as individual property in the marital agreement. This is the only way you can guarantee they are protected. These agreements also streamline the property division process a lot during divorce and make it go by much faster. However, understanding quitclaim deeds and how exactly the effect of a divorce is also essential. The hardest part of property division during a divorce is typically real estate. So, knowing exactly what can happen to your home during a divorce is something you should research well.

person signing an agreement
A nuptial agreement can protect some of your assets during a divorce.

Who stays in the marital home?

This is probably the most important question about property division during a divorce. A number of factors go into the decision, and they’re all important. If you have minor or dependent children, the parent with primary (physical) custody has a higher chance of staying in the marital home. However, it’s also considered if that spouse can pay the rest of the mortgage and deal with other related costs. If they can’t, then the marital home typically goes to the spouse, who can handle these costs. And if you find yourself losing the marital home, you should be ready to move out quickly. The hardest part of this would be finding a new home, but preparation is also essential. You likely won’t have time to pack, so consider hiring professional packers when moving. Let experts take over packing while you search for a new home.

If your spouse’s actions caused the divorce, does it affect their asset share?

Whether or not courts consider fault when diving property depends from state to state. It generally makes no difference in courts that don’t, with two exceptions: alimony and spousal support. Courts will generally not grant alimony to a spouse who cheated or engaged in an affair. Everything else is unaffected, however. On the other hand, if courts in your state do consider fault when dividing property, then yes: you can get a larger share if your partner caused the divorce. For example, if your partner cheated on you, you are much more likely to keep the marital home or just get a larger share of the assets. However, you can’t know if you will keep the house or not, so you should be prepared to move out regardless. Consider the benefits of having moving insurance ahead of time, and be prepared to move out on short notice, just in case.

a person putting a ring on a table
Whether the fault is considered or not depends from state to state, but it’s always considered for alimony or spousal support.

Common questions about property division during a divorce – wrap up

Divorce is a complex process to get through for a lot of reasons. There are a lot of emotions, and the entire process is long and challenging. The property division during a divorce is the most prolonged and difficult part. However, you can make it easier by doing research ahead of time. At the very least, you can know which of your assets are safe and viable for division. Being informed about this might not necessarily change the outcome, but it’s still quite significant. We hope this list of common questions helps answer the most important questions you might have, and we wish you luck.