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The Four Major Decisions in a Divorce, Part 1: Property Division

In all divorces, there are certain decisions you must make. If there are children involved, you have two additional concerns you must address. In this series of articles, we will explore each of these decisions in detail.

Within a marriage, couples accumulate assets. They buy houses, cars, gaming systems, or simple trinkets to decorate the home.

Technically, any property that either spouse purchases is co-owned by the other spouse. It doesn’t matter if it’s a magazine or an expensive sound system. The other party is a 50% owner of that item.

Because both parties own this marital property, someone must decide who can keep which asset. States make these decisions in a couple of different ways.

Equitable Division of Property

Most U.S. states use an equitable property division model. Under this system, the court attempts to distribute property according to fairness. It’s not concerned with who paid for an item or who originally purchased it.

Instead, the court considers the primary user of or contributor to an item. Imagine, for example, a married couple where one person works and the other stays home with the kids full time. Some may believe that the primary earner should be entitled to the home.

A court, however, will look at who kept the home maintained. In most cases, this person is the stay-at-home parent. Also, the court will think about the kids. The children are comfortable in the home, and uprooting them could cause distress. In many cases, an equitable division state will allow the full-time parent to keep the home.

Equal Division of Property

Community property division is an “equal” distribution method. Many consider it an antiquated way to divide assets, and only nine of the fifty states still use this system. California uses the community property model.

Under this system, courts attempt to divide assets equally among the spouses. This includes all marital property: physical assets, financial assets, and even debt.

Dividing property equally creates problems. Often, value is tied to the asset itself, and that money is not liquid. For example, say a couple acquired expensive artwork during the marriage. If one spouse keeps a $20,000 painting, they will owe the other spouse $10,000.

If they cannot pay their spouse $10,000, they can hand over other physical property equal to that amount. Sometimes, however, they are forced to sell property and split the earnings with their spouse.

What Are Your Options?

Of course, you can leave property division up to the courts. When you and your spouse can no longer work together, this may be your only option.

However, you always have the option of making any divorce decisions on your own. If you need help, you can hire a mediator. This legal professional works for both spouses, and they help facilitate communication and negotiation.

Through mediation, you can bypass any currently established system and divide property however you choose. You and your spouse may concoct a system that is fairer to you, representing your unique needs. Best of all, mediation can give you power over any final decisions, keeping others from making choices for you.

In our next article, we will discuss spousal support.

Contact our firm today with concerns about property division in your divorce. You can fill out our online contact form or call us now at (951) 779-1610.