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Going through a divorce is an emotionally stressful time for both spouses and even their children. A lot of stress is expected during the divorce; that is why having proper guidance and assistance from trusted professionals can take away some of the burdens.
Here, we have answered the most common questions about property division during a divorce to give you an idea of how things should go.
How are Assets or Properties Divided in a Divorce?
Deciding how to divide properties and assets between spouses fairly is one of the challenging aspects of a divorce. If you’re not comfortable talking about this matter with your spouse, your best choice is to hire a legal professional who can act as a middleman.
After the separation, one spouse usually decides to stay in the matrimonial home. If this happens, the next decision would be to determine how the ongoing expenses like mortgage payments, utilities, and maintenance will be paid.
Assets and properties acquired during the marriage and the increase in their value are divided equally unless you and your partner decide on a different split or the court divides it differently.
Equitable Distribution
Equitable distribution is the process of dividing marital and divisible property in court. Negotiating and dividing property without involving the court is possible. However, that is not the case for most divorces.
When spouses find it hard to cooperate and come to a definite agreement, the court will have to step in and facilitate a hearing and divide your marital property (assets and debts) using the theory of equitable distribution.
Under the theory, a judge is to split marital property 50-50 unless he deems that such a split would be unfair. When determining the percentage of the split, the judge considers a lot of factors which includes:
- Each spouse’s income, debts, and property
- Length of the marriage and the spouses’ age
- Ways in which a spouse directly or indirectly contributed to the other’s educational and professional opportunities
- A custodial parent’s need to occupy or own the marital home or other household items
- Both spouses’ physical and mental health
- Tax consequences related to the property division
- Any other factors that are “just and proper.”
Property Types in Property Division During Divorce
For property division, courts classify property into three categories:
Marital Property
Income, assets, property, and debts acquired during the marriage fall under the marital property. It also includes wages, pension and retirement funds, investment accounts, real estate, personal property, mortgages, car loans, and credit card bills.
Separate Property
Pre-marriage assets and debts, which include gifts or inheritances that were given to a specific spouse, are not shared between spouses when they decide to get a divorce.
Even though an asset is classified as separate property, there is a possibility that it could be transformed into marital property. This happens when you commingle it. Commingling means that you mixed a separate property with marital property.
For example, if you use an inheritance to buy a jointly-titled asset, it might become marital property.
Divisible Property
Between the time of you and your spouses’ separation and the court’s handling of the property distribution, spouses can still receive assets that may change in value. These assets are considered divisible property. You should note that assets earned before separation will still count as divisible property if it’s received after separation.
Once you have identified all your marital and divisible property, the next step is determining their values. Next, you and your spouse will need to accomplish an affidavit of equitable distribution that outlines assets and their respective fair-market value as well as any debts. In most cases, the values are easy to set. However, there are complicated assets that may require the help of a professional.
Judges will usually base on the fair market value of an asset to decide its value in an equitable distribution case. Fair market value is the price at which a willing buyer would pay a willing seller for the item in question when neither is under a compulsion to buy or sell the property.
Effect of Prenuptial Agreements in Divorce
There are two types of nuptial agreements: postnuptial and prenuptial agreements. In a nuptial agreement, spouses decide which properties are marital and which are separate. These agreements greatly affect divorces since it makes the process of dividing the assets of the couple.
However, you should know that not all nuptial agreements are valid. The validity of a nuptial agreement can be disputed if you didn’t enter it voluntarily, it was based on fraud or misrepresentations, or it wasn’t signed properly.
If you don’t have a nuptial agreement, you negotiate a separation agreement by going into an out-of-court property settlement that divides marital and divisible property and identifies the separate property. A separation agreement can also resolve child custody and support issues.
If you need help with your separation agreement, it is best to consult a legal expert so that you’ll understand all of the details in the agreement.
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Dos and Don’ts During a Divorce |
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| Eliminate emotional, verbal, and physical intimacy from the relationship to prevent as much confusion as possible. | Communicate verbally unless the communication is about the kids. With such a sensitive topic, keeping it as business-like as possible will benefit all parties. |
| Have one or two good friends that support you in this process. Just like with any trial life throws at you, a support system is essential to keep you secure. | Let your emotions override your logic during the divorce. It’s easy to get caught up in your head and what you’re feeling during this process, but to remain healthy and stable for yourself and your children, you must be able to be objective. |
| Allow your attorney to mediate as a way to help navigate through any tricky areas of marital dispute. | Send excessive text messages or emails for any reason. Try to limit them to a few per day at the absolute most. |
Divorce is a difficult time for spouses, especially if property division is involved. If you need assistance dealing with the tedious processes associated with it, talk to a family law lawyer from Gelman and Associates today.
Pro Tips – Common Questions About Property Division During a Divorce
Try to have an amicable settlement with your spouse to avoid going into trial.
Who Gets to Stay in the House After the Divorce?
Once the matrimonial home’s value has been divided in a divorce, the house needs to be refinanced. By this time, you and your spouse will decide whether to sell the home, or one of you will pay the other to own the property solely.
So, if you decide to retain the matrimonial home on your own, it means that you’ll have to keep on top of the mortgage payments, upkeep, and home insurance.
FAQs About Property Division During Divorce
FAQs About Property Division During Divorce
The Ontario Attorney General’s website estimates that divorce proceedings can take approximately four to six months to complete, provided that all documents have been appropriately accomplished and submitted on time.
No. You are not required to get a lawyer for a divorce. However, it is best if you retain one to ensure that you fully understand all your rights and obligations.
A joint divorce application occurs when you and your spouse both agree to a divorce and on all other family law matters such as parenting, spousal support, or division of property.
