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Property Division: Divorce Laws

A divorce effectively ends the union of common assets and liabilities between spouses. Property must to be divided between the two. In addition, courts will also become involved with the distribution of assets between people who were never married.

Most states will divide and distribute all assets and liabilities, regardless of source, acquired during the marriage. Appreciation in value of assets that were purchased before the marriage can also be included in the division, a few states allow for the division of all assets regardless of when they where obtained.

Inheritance, on the other hand, is often treated as nonmarital property. Some states consider this as a separate asset and won't divide it, however, appreciation of the inheritance during the marriage may be considered marital property.

In general states will focus on dividing the assets and liabilities equally. In some cases division will not be equal if the court identifies a factor that makes the distribution unfair to a particular side. Some of these factors include:

  • The spouse's contribution to the marriage
  • The care and education of children
  • Economic circumstances of the both parties
  • Length of the marriage
  • Career interruptions or educational opportunities
  • Help from one spouse to the career or education of another
  • Contribution of one spouse to the career or educational opportunity of the other
  • The desire for one spouse to retain an asset.
  • The retention of the marital home for the use of a dependent child to serve in the child's best interest.

Housing Issues
Custodial parents aren't always assured the marital house upon divorce. The courts can award the house in cases when the children are small and sufficient finances are available. In order for a spouse to buy out the other spouse's share of the house, the fair market value must be determined. In cases where spouses can agree on a value this can be simple process. In other cases where spouses cannot agree on fair market value, it is recommended to agree on either a single appraiser, have separate appraisers and negotiate differences in values between the two, or have the separate appraisers select a third to produce a value.

Tax issues
Spouses who signed a joint return are both responsible for tax debts. If the tax debt is divided by agreement or order and one party doesn't pay, the other spouse could be liable for the payment. If liability occurs from a circumstance with which one spouse has no knowledge, the "innocent spouse doctrine" may exempt the spouse from liability.

Retirement funds that were accumulated during the marriage can be shared with a nonworking spouse. However, benefits that were accumulated either before or after the marriage are usually not subject to division.

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Disclaimer: Information contained throughout The Divorce Lawyer Directory is intended to generally inform you about divorce laws dealing with division of property in divorce court. The information regarding divorce and divorce law is not meant to be taken as legal advice. If you like to speak with an experienced divorce attorney, click on the link to your state to find an experienced divorce lawyer.
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