Divorce is one of the most challenging moments you can ever face. Before you can plan for a new life of being single, you must first finalize the division of assets with your ex-spouse, among other crucial matters.
Asset division, in particular, is complex and could become more so when pre-marital assets are involved. For both parties to get what’s rightfully theirs, due process must be followed.
So how do you navigate marital asset division, especially when you feel emotionally and mentally overwhelmed? Here’s a detailed guide on how to manage this matter successfully.
Hiring a property division lawyer
Usually, married couples accumulate assets, and determining how to divide them fairly can be challenging during divorce. Asset division can even become more complex when it includes comingled and intangible assets, such as investments and shares.
It’s advisable to work with a state lawyer to help you navigate the complexities and emotional challenges during asset division. So if you live in Denver, hire a Denver property division lawyer to help you understand how state laws apply to your case, ensuring that you receive a fair share. Additionally, the lawyer can help negotiate, resolve disputes, and represent you in court in a contested case.
Marital vs. pre-marital assets
Assets are categorized as pre-marital or marital assets. As the name suggests, pre-marital assets are assets that were acquired before the marriage. They are generally protected during the divorce, meaning they’re not subject to division. However, this protection is not absolute. In the following cases, it might not apply:
- A pre-marital asset that increases in value during the marriage, such as a house or money in an investment account, because the value of the asset could be seen as a benefit of the marriage
- If the pre-marital assets commingle with the marital assets, such as pre-marital money deposited into a joint account and pre-marital assets used to purchase marital property
- If a spouse contributed to the pre-marital assets, such as by paying for a pre-marital house mortgage or depositing money into the spouse’s account
To protect pre-marital assets, it’s wise to be ready with corroborating proof that the asset is yours.
On the other hand, marital assets are those acquired during the marriage. They could include bank accounts, stocks or other financial investments, a marital house, and separate properties that appreciated during the marriage.
Community property vs. equitable distribution
In the US, there are two main systems used to divide marital assets: community property and equitable division. These systems may vary by state.
The community property rule dictates that all marital assets are owned equally by the spouses regardless of who holds the title to the assets. This rule advocates for equal division (50/50) between spouses in divorce cases unless they agree otherwise.
Conversely, equitable distribution uses the ‘fair distribution’ model. Spouses get a share of the marital assets based on the length of the marriage, contribution to the marriage, dependent children, and other underlying factors, such as infidelity. Equitable distribution is more common among many states in the US for being more in line with the modern views of marriage.
As a side note, prenuptial agreements take precedence over marital asset division laws. Therefore, whatever is stipulated regarding how assets are to be divided in a prenuptial agreement will be honored by the court.
Another important factor during the marital asset division is marital debt. This is the debt one or both spouses incurred during the marriage until the day of separation. The concept of marital debt is often confusing, and many people believe the person who took the debt is responsible for the debt.
However, the court can divide the debt evenly or assign it to the person who took it, depending on the nature of the debt. For example, debts incurred through gambling will have to be covered by the spouse who took them. However, the debt incurred for the general expenses will be divided evenly among the spouses.
Debts like student loans can be treated as separate debt, and only one spouse may be liable. However, student loans can be considered marital debt in some states and under certain circumstances, hence divisible between spouses.
Marital assets division is mentally, physically, and emotionally draining since all parties try to get what they believe is a fair share. The process involves several negotiations, valuations, and legal steps to determine which should go to whom. To truly understand and navigate the division of pre-marital assets, debts, and marital property, it’s most advisable to work with a lawyer.
Sophia Davis is a family law attorney specializing in complex marital asset division. With years of experience in helping individuals navigate the intricacies of property division during divorce, Sophia is well-versed in the legal aspects of dividing investments, properties, and other valuable assets. When she’s not advocating for her clients, Sophia enjoys reading about financial trends, attending legal seminars, and volunteering at legal aid clinics to support her community.