A major consideration in many divorce cases is dividing up assets spouses accumulated during the course of a marriage. State laws across the country adopt one of two different standards to guide courts in divvying up property during divorce proceedings, according to the American Bar Association Section of Family Law.
Considerations
A key consideration associated with dividing up assets in a divorce case is identifying marital property, according to Cornell University Law School. Only marital property is subject to division between spouses during a marriage dissolution proceeding. Marital assets represent property a couple accumulated during the course of a marriage. This includes income earned by one or another of the spouses during the marriage. Marital assets exclude property a spouse owned before the marriage, as well as gifts and inheritances received specifically by one spouse during the marriage.
Types
The most widely used standard adopted by states regarding division of property during a divorce is equitable division. Equitable division requires a court to divide property accumulated by a couple in a fair manner, according to FindLaw. "Fair" does not mean "equal." Rather, the judge looks at the specific circumstances of the couple in distributing assets. The other standard is community property. Community property requires dividing marital property equally between the spouses.
Property Settlement Agreement
Divorce statutes encourage couples seeking a termination of their marriage to negotiate a settlement of issues if at all possible, according to "The Complete Divorce Handbook: A Practical Guide" by Brette McWhorter Sember. This preference extends to resolving matters surrounding property acquired during the marriage. In cases where parties reach agreement, they put it in writing within a property settlement agreement. Court clerks commonly maintain a selection of standard forms for use by people not represented by an attorney, including a property settlement agreement form.
Mediation
In some jurisdictions, those unable to settle property issues on their own take advantage of mediation. Mediation is a process that brings the couple before a professional mediator. The mediator does not decide issues for the couple. She facilitates discussion between the parties with the objective of assisting them in reaching decisions regarding their property.
Court Hearing
Failing to reach a settlement either through negotiation or mediation, the parties appear before a court at a hearing. The judge takes evidence and argument from the spouses and renders a decision regarding the division of property. The judge applies the standard adopted by law in the state where the couple divorces.
References
- Cornell University Law School: Divorce Overview
- FindLaw: Family Law Center
- "The Complete Divorce Handbook: A Practical Guide"; Brette McWhorter Sember; 2009
