How Do We Divide The Property?

Property may be classified as “real”, “personal”, “tangible”, “intangible”, or in any number of other categories (“inchoate”). Basically, anything having a value is “property” in a divorce case. Any “property”, which accumulates or is acquired during a marriage, is “marital” property. Property owned prior to the marriage, property acquired by inheritance or gift from a third party, and anything directly traceable to the foregoing, are usually “nonmarital” property.

State divorce courts may or may not be able to transfer ownership of property titled in the name of one spouse to the other spouse. (Spouses are free to do so, however, in an Agreement.) You need to consult your own jurisdiction in this regard. If a state divorce Court cannot transfer title, they must decide how to allocate marital wealth between the divorcing spouses. That will require them to determine, and you to prove:

  • What “property” has accumulated during the marriage.
  • The value of the marital property.
  • How the marital property is allocated between the parties, by title, and decide whether the distribution is “equitable”. If not, the Court will be asked to remedy any inequity by requiring one spouse to pay the other a sum of money.

In making this “equitable adjustment”, most Courts will consider:

  • The contributions, monetary and non-monetary, of each party to the well-being of the family
  • The value of all property interests of each party
  • The economic circumstances of each party at the time the award is made
  • The circumstances that contributed to the estrange¬ment of the parties
  • The duration of the marriage
  • The age of each party
  • The physical and mental condition of each party
  • When specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan was acquired, including the effort expended by each party in accumulating the marital property or the interest in the pen¬sion, retirement, profit sharing, or deferred compensation plan
  • Any award of alimony
  • Any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan, or both.
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