Property Division for Divorcing Dads

Protecting Your Rights to Marital Property and Assets

Getting a divorce isn't easy. During the divorce process, you're going to need to separate just about every part of your life from your spouse, and this includes determining how to handle the property you own together. While you'll probably be focused on issues related to your children, you'll also want to make sure you have the resources you need to provide for yourself in the years to come. Understanding the extent of what you own will help you determine the best approach to take when dividing these assets between you and your ex.

Marital Vs. Non-Marital Property

When addressing the property you own, you'll first need to determine what is and is not subject to division. Marital property (which may be referred to as community property in some states) usually consists of all assets and debts that you and your spouse acquired during your marriage, either together or separately. Non-marital property (also known as separate property), on the other hand, usually consists of anything either spouse acquired before getting married or after a legal separation. Inheritances are also usually considered non-marital property, and a prenuptial or postnuptial agreement may be used to designate certain assets as marital or non-marital.

Only marital property must be divided between divorcing spouses, and any non-marital property will remain in the possession of the spouse who originally owned it. While this may seem straightforward, there are a variety of issues that can affect how property is classified. For instance, if you owned a business before you got married, but your spouse helped you manage the company during your marriage, she may claim partial ownership of the business, or you may be required to compensate her for the contributions she made to the company's growth. If your marital and non-marital assets have become commingled, you'll want to work with an attorney to determine the best way to divide these assets fairly.

How Should Property Be Divided?

The laws regarding the division of marital property vary from state to state. In "community property" states, the law will require all marital assets to be divided equally, while in "equitable distribution" states, property will be divided in a way that allows each spouse to get a fair and equitable share of the assets.

You may need to address many different types of property before you can complete your divorce, including:

• Bank accounts - You'll most likely want to close any joint accounts and divide the funds in these accounts equally, although one of you may receive more in order to make up for assets granted to the other party.
• Vehicles - You and your ex may decide that each of you will retain ownership of the car that you primarily drive. However, if one party's vehicle is worth more than the other, other assets may need to be divided in a way that offsets this difference in value.
• Valuables - The two of you may own items such as artwork, sports memorabilia, jewelry, or designer clothing, and in addition to what they are worth, they may have a sentimental value to one or both of you. In some cases, you may need to have items appraised to determine their actual value and ensure that they are divided fairly.
• The marital home - The equity in your house or other real estate property is likely to be a very valuable asset. Whether you plan to sell the house or one spouse wishes to continue living in the home, you'll need to address issues such as refinancing the mortgage and paying property taxes.
• Business interests - If you or your spouse are a business owner, you'll need to perform a business valuation to determine the actual value of your company's assets, and you'll probably want to determine how you can divide these assets in a way that will allow the business to continue operating.
• Retirement accounts - If either or both of you have retirement plans such as a 401(k) or IRA, you'll need to divide the funds in these accounts between the two of you. Similarly, if one spouse will be eligible to receive pension benefits upon retirement, the other spouse may be entitled to receive a portion of those benefits. You'll want to use a Qualified Domestic Relations Order (QDRO) to divide these assets, since this will make sure you won't have to pay any taxes or penalties when withdrawing or transferring funds.
• Credit cards and other debts - In addition to the assets you own, you'll also need to divide the debts that were created during your marriage, including balances on joint credit cards and debts that are in one spouse's name.

During a divorce, disagreements over who will own what property can sometimes become very contentious, and you may worry that you're putting too much energy into these disputes. However, it's important to remember that you deserve to benefit from the work that you put in toward helping your family succeed during your marriage. You'll also want to make sure you have everything you need to provide a good home for your kids. By working with an experienced divorce attorney, you can make sure your rights to receive a fair share of your marital property are protected, and you can be prepared for success after your divorce is finished.