The process of a divorce can sometimes feel overwhelming. The issues which must be dealt with can be filled with emotion, from anger and frustration to sadness and loss. Distributing property is a complex part of the divorce process – understanding how it works can help to ease your mind and mitigate the pain you may experience.
Marital and separate property
Unless a couple agrees on how property should be divided, the court will make decisions as to which spouse gets what property. At the outset of the process, all property and assets must be identified and catalogued, so that the court understands what it is dealing with. Once that’s done, each asset will be classified as either marital or separate property.
Separate property is any property belonging solely to one spouse. Often, this is property that one spouse owned and possessed before the marriage began, though sometimes property can be acquired during the marriage – such as an inheritance – and remain separate property. Marital property is any property belonging to both spouses. Properly classifying property and assets is one of the most difficult aspects of the divorce process.
While separate property usually remains with the spouse who owned it, marital property must be divided between the two spouses. Equitable distribution is the concept which guides the court making the decision. In this case, equitable refers to fairly distributing the property, not dividing it equally. Sometimes a fair distribution results in equal distribution, but not always.
The court will consider many factors, such as the age and earning power of the spouses, to determine what is fair. Real property, bank accounts and retirement funds are all subject to equitable distribution, so long as they are deemed marital property. Because every marriage is unique, so too is every divorce and the division of existing property and assets.