One area of divorce law in which individual states adopt different standards is with regard to the division of assets and debts accumulated by a couple during the course of the marriage, according to FindLaw. Before making any decisions regarding financial issues in a divorce case, find out what standard is applied by a court in your jurisdiction regarding division of assets and debts. Your state legislature provides family law statutes at its online website.
Types
One of two different standards is used to divvy up assets and debts during divorce proceedings, according to Cornell University Law School. The most common standard is that of equitable division. The less frequently used, but perhaps better known, standard is that of community property. This standard requires an equal division of property as well as debts between spouses. Community property historically garners more attention because it is used in California, a state that is home to a number of high-profile divorce cases involving celebrities.
Considerations
Equitable division requires a judge to divide assets and debts in divorce proceedings in a fair manner. "Fair" does not mean "equal." Rather, it means considering the specific circumstances of a couple and facts of a case when dividing property and debts. Community property requires a court to divide assets and debts evenly between a couple, as close to 50 percent set aside to each party as possible.
Marital Assets
Whether an equitable division or community property standard is used, only marital assets and debts are subject to divvying up in divorce proceedings, according to "The Complete Divorce Handbook: A Practical Guide" by Brette McWhorter Sember. Marital assets and debts include property and financial obligations incurred by the spouses during the course of the marriage. Property and financial obligations brought by one of the spouses into the marriage typically are not included in the tally of marital assets and debts subject to judicial division.
Prenuptial Agreement
A legally binding prenuptial agreement alters the manner in which marital assets and debts are distributed during a divorce. The prenuptial agreement supersedes the general standard established by the laws of a particular state, according to the American Bar Association Section of Family Law.
Expert Assistance
Resolving financial issues represents one of the most contentious and complicated aspects of divorce proceedings, in many cases. Understanding this reality, retaining an experienced attorney to represent you in a divorce proceeding usually is a wise decision. The American Bar Association maintains resources to assist you in finding a lawyer, including contact information for local and state bar associations.
References
- FindLaw: Divorce and Property
- American Bar Association: Section of Family Law
- "The Complete Divorce Handbook: A Practical Guide"; Brette McWhorter Sember; 2009
