Divorce can bring on a lot of panic, especially when it comes to what you will “win” or “lose.” When the spouses share a high net worth, this panic can become all-consuming.
Before you go into your divorce, you should arm yourself with as much knowledge as possible. Knowing what to expect will ease your concerns, and it will prepare you for how to respond to certain situations. To that end, this article is here to help explain how courts divide property in any divorce, regardless of the spouses’ assets.
Whether you will “keep” or “lose” property depends on whether that property is “marital” or “separate.”
Marital Property Is Split Between Spouses
Marital property is any property or assets acquired during a marriage, regardless of whether only one person holds the title. Marital assets can include tangible property such as real estate, vehicles, furniture, jewelry, and artwork. Intangible marital assets include bank accounts, stocks and bonds, pensions, and retirement plans. Both spouses own marital property equally.
Separate property is any property or asset that was acquired before the marriage. It also includes any property acquired after the marriage through a separate gift or inheritance. Separate property may become marital property if it is mixed with marital assets, such as when proceeds from a separate asset are deposited into joint bank accounts. Only one person owns separate property.
Marital assets are divided between spouses in a divorce.
How Is Marital Property Divided?
Most states divide property using an “equitable” model. This is the process of fairly dividing property.
The court considers several factors when determining an equitable distribution, including:
- the length of the marriage
- any prenuptial agreements
- both parties' mental health
- each party's income and earning potential
- each party's role in acquiring and managing property during the marriage
Remember, “equitable” is not the same as “equal.” This model does not divide assets “50/50” between the spouses. The court will strive to give assets to the most deserving person.
Nine states still use the “community property division” model, often considered the more antiqued of the two. This model attempts to give each spouse 50% of the overall marital assets. Therefore, even if you keep an asset, you will owe your spouse half its value.
Nevada uses the community property division model.
“Losing” Is the Wrong Word
It’s easy to think of anything that you purchased or worked for as “yours.” Remember, however, that your spouse is the legal co-owner of all the marital property. You already share it with them, so you are just dividing your co-owned assets after the divorce.
However, it’s only natural to believe you are the rightful owner of certain property. To keep any asset in a divorce, you must make a compelling argument for entitlement. Work closely with your attorney to develop a strategy.
Some ways to prove entitlement to property include:
- Sabotage
You can go on the offensive, offering evidence of how your spouse devalued, ruined, or otherwise inhibited the property. - Primary Use
Although the item technically belongs to both parties, you were the one who used it most often. Everyone in the home regards the asset as “yours.” - Contribution
Because of your work, you made the asset more valuable or more attractive to users. Stay-at-home parents often employ this strategy. Even if they did not make monetary contributions to the home, they argue that they maintained it and were “in charge” of it, therefore they should keep it.
Ford & Friedman is here to help protect families and their assets in a divorce. You can schedule time with one of our attorneys by calling (702) 904-9898 or contacting us online.