How Property is Divided in Family Law 

If your divorce is imminent and you have not yet decided on how to divide your assets, you may wonder how property is divided in family law. There are several factors to consider, such as community or separate property, and debts. In this article, you will learn more about community property and how your debts are divided. You will also learn more about the equitable distribution method. Listed below are some important factors to consider before filing for a divorce.

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Equitable distribution 

The process of distributing marital property in a divorce is known as “equitable distribution.” In determining the division of assets, the court takes into account various factors, including the length of the marriage, the value of the marital estate, and the contribution of each spouse to the marriage. Other important factors include age, health, education, earning capacity, and contributions to the other spouse’s education. In South Carolina, for example, adultery and marital misconduct are considered relevant factors. 

When determining equitable distribution, the property each spouse received is valued based on their financial situation before and after the marriage. One example of an equitable division is the “house/pension 50/50” case. The parties must sell the marital home before the home is divided. These expenses would include insurance fees, utilities, home repairs, and taxes. In addition, some states look at the cause of the divorce to determine a fair distribution. 

Community property 

Community property refers to assets acquired by both partners during the marriage. During the marriage, a spouse can acquire and manage one’s share of community property, while retaining half of that interest for the benefit of the other. Under the law, a spouse cannot transfer the whole piece of community property to their partner, while managing half of it. This includes a portion of an inheritance, such as a car. 

The law considers each spouse an equal co-owner of community property. In a divorce, community property is divided equally between the couple, while separate property is given to the spouse who owns it. Sometimes, economic circumstances warrant awarding a certain percentage of community property to one spouse over the other, but each spouse still receives 50 percent of the overall value of the community assets. The division of community property in a divorce depends on how long each spouse was married and the potential for future earnings. Other assets acquired during the marriage may also be included in the court’s decision, including premarital gifts and inherited property. 

Separate property 

When it comes to dividing property after a divorce, one spouse may be entitled to more of it than the other. Separate property refers to anything that a couple owned before their marriage, including real estate. This includes the rents, increases, and issues from that real estate. In some states, it also refers to gifts. Some assets may be separate even if they were received before the marriage, like a $150,000 boat purchased before the marriage. Separate property may also include property acquired after the marriage, such as the inheritance of property, or gifts of money. Likewise, spouses can also separate some of their debts, such as student loans and car loans. 

In a common example, a couple might own two vehicles, one before and one after the marriage. To determine who will get what, each spouse must categorize their properties. In this case, the husband might be awarded the Mercedes-Benz because it was purchased before the marriage, while the wife acquired the Lexus by borrowing from friends and family. While this could be confusing for some people, it is essential to understand that the husband will be awarded the Mercedes-Benz, while the wife will receive the Lexus. 

Debts 

One of the most difficult aspects of divorce is dividing debts and property. These issues are often complex and never black and white. For example, if the spouse who keeps the credit cards is found to have secretly used the accounts, the judge may rule that they are not responsible for the debt. In other cases, debt may be traded for property and divided accordingly, but this involves an accurate assessment of both debts and assets. 

In North Carolina, debts and property are divided according to fair market value. Unlike marital property, debts acquired before marriage are not necessarily separate. However, pre-marital property may become marital if it has increased in value during the marriage. In this case, the division of the debts and property will generally be based on the increase in value during the marriage. This is the case if the spouses used the money for the family’s benefit.