How Is Property Divided In A Divorce?

If you're going through a divorce, you may be concerned with who gets to keep the house and how things like retirement accounts will be divided. While property division might be a source of emotional contention, it isn't that difficult from a legal standpoint. Here's how it works.

Property Acquired Before a Marriage and Held Separately During a Marriage

There are two categories of property in a divorce: marital and non-marital. Non-marital property is everything that each spouse had before the marriage.

Non-marital property is returned to its original owner and not divided as long as it is treated as separate property during the marriage and not improved with marital assets. For example, a rental property owned by one of the spouses before the marriage and maintained only using rental income would be returned to that spouse.

Property Acquired Before a Marriage and Improved During a Marriage

Property that was originally held during that marriage but that is improved on using income earned during the marriage or the work of both spouses will generally be considered marital property. For example, a house owned by one of the spouses before the marriage that they moved into during the marriage and renovated using both incomes would be considered marital property.

This scenario is often complicated in investments like businesses where a spouse had a firmly established business before the marriage and the other spouse came to work in it. Depending on the legal arrangements, a judge may find that it was not marital property or that it was marital property but that one spouse is entitled to a bigger share.

Property Acquired During a Marriage

All property acquired during a marriage is considered marital property. This includes wages, gifts, investment income, and almost any other type of income.

During a divorce, marital property is divided as equally as possible. This means a 50/50 split regardless of the income of the spouses. The reason there is no adjustment for income is that the law considers that a spouse with less income is likely contributing to the marriage by taking care of the home or forgoing career opportunities to help push their spouse's career.

If a house is involved, the spouse who receives it will receive a lesser share of other assets, or it may be sold so that the proceeds of the sale may be split.

To learn more about the division of marital property during a divorce, contact an attorney like Law Office of Jared T. Amos