How Exactly Does A Lawyer Decide How to Split Things Up?
When a couple gets a divorce, deciding how to split everything between the two individuals can be a significant cause for delay. Whether the couple already has a pre or post marital agreement or is negotiating asset and property division anew, matters can quickly become contentious. Deciding who gets what can vary depending on the experience of the attorney retained to handle your case, the existence and validity of prior marital agreements, the attitudes of the spouses, and, most importantly, the laws of the couples’ state.
The couples’ divorce division resolution could differ depending on whether their state follows the principle of community property versus equitable distribution. Most states use equitable distribution. In states following the principle of equitable distribution, all property, money, and assets acquired during the marriage are divided equitably and fairly between the spouses. In other words, the attorneys, spouses, and the court (if necessary) will develop for a resolution that is fair but not necessarily equal. In contrast, fewer states use the alternative principle of community property. These states include Alaska (this is optional and allowed by agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, all marital property—which is defined as property acquired by one or both spouses during the marriage—is divided equally between the two spouses. This includes an equal division of all marital debts and liabilities. Each spouse keeps property that is separate property—which is defined as property acquired by one spouse before their marriage or obtained by gift or inheritance—under community property principles.
It is the attorney’s job to come to an amicable divorce resolution that divides everything between the spouses according to their state’s rules. Your attorney should also fight to get you the maximize value for your divorce arrangement that follows your state’s laws. However, it is important to note that if the couples’ attorneys are unable to reach fruitful settlement negotiations regarding asset and property division or custody issues, then court involvement may be warranted. If in existence and valid, the terms of the marital agreement are executed. If held to be invalid or unconscionable by the court, all marital property and liabilities are divided equally in community property states. However, this analysis of determining who gets what is more complicated in states that follow the principle of equitable distribution.
In the absence of a marital agreement or fruitful negotiations with the spouses’ attorneys, most courts consider a variety of factors when dividing marital property and liabilities, including the following:
- Earnings of each spouse relative to the other.
- Each spouse’s contribution to the acquisition and maintenance of marital property.
- The value of non-marital property for each spouse relative to the other.
- Conduct of each spouse during the marriage.
- Any arrangements that are to be made about children involved (e.g., custody, whether the child will remain at the marital home, planned visitation, etc.).
The above list is only representative of the issues considered when determining who gets what at asset/property division. Some of these factors could also differ state by state. This is why it is so important to retain a divorce law attorney as soon as possible so they can start working to get you the maximum value out of your divorce arrangement.