If you expect to divorce in the near future, you likely have countless questions about what to expect and what laws might come into play during your divorce proceedings. If you have any concerns about property division, one of the first steps you can take is researching your state’s property division laws pertaining to divorce. The two most common property laws in use in the United States when it comes to property division in divorce are “community property” and “equitable distribution.”
What Is Community Property?
Only nine states in the United States follow community property statutes for property division in divorce. They are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Should you reside in one of these states and decide to divorce, you should expect judges from those states to aim for as close to 50/50 property division as they can manage. Additionally, community property laws apply to different types of property, such as real estate, retirement accounts, and stock options, in different ways. It is not always easy to predict which types of property are subject to community property division in these cases.
Under community property laws, all property and assets gained during a marriage are equally owned by both spouses. This is true regardless of whether a piece of property or an asset was obtained through the sole efforts of one spouse. Divorce negotiations in community property states generally boil down to determining exactly which property in a marriage qualifies as community property and dividing those assets equally.
Community property states do acknowledge separate property that only belongs to one spouse but only in specific circumstances. For example, if a spouse received an inheritance or gift from an extended family member, this would count as separate property. If a spouse contests that other assets are their separate property, they must provide evidence that they acquired those assets prior to the marriage and that their spouse had no part in acquiring or helping to purchase those assets.
Understanding Equitable Distribution
The Stange Law Firm serves clients throughout Illinois, Kansas, Missouri, and Oklahoma, all four of which follow equitable distribution laws when it comes to property division in divorce. If you plan to divorce in any of these states, you should understand what equitable distribution means and how these laws will apply in your divorce.
In an equitable distribution state, the court aims to determine the most equitable division of marital property and assets based on the needs of each divorcing spouse and the facts in play during the divorce proceedings. This does not mean the court automatically seeks an exact 50/50 split of marital property. It’s more common to see 60/40, 70/30, and even 80/20 splits in divorce cases due to the values of different types of property. In some cases, the court may feel it’s suitable to award all the marital property in a divorce case to just one spouse. However, these determinations are typically reserved for cases involving a spouse who has severely mistreated or abused the other or if one spouse committed severe criminal offenses against the other.
Factors Considered in Equitable Distribution Proceedings
The process of determining equitable distribution in a divorce case can be difficult and time-consuming. The courts in Illinois, Kansas, Missouri, Oklahoma, and other equitable distributions states will evaluate several key factors to make their decisions. Some of the variables that go into equitable distribution determinations include:
- The length of the marriage. The longer a marriage has continued, the more likely the court will be to consider most of the marital assets to be equally owned by each spouse.
- Custody decisions. If one spouse obtains majority custody over the couple’s children, the court will acknowledge this as a need for a larger share of the marital assets and property.
- Financial needs and liabilities of both spouses. For example, if a spouse left a previous job to become a homemaker after marriage, this may mean they need money to invest in a college degree or official certification to obtain gainful employment.
- Each spouse’s present and future earning capacity.
- Amounts contributed by each spouse toward the purchase of marital property, such as the family home or shared vehicles.
- Household contributions of each spouse, such as taking care of children, preparing meals, performing household chores, and other non-monetary contributions.
- The ages and medical conditions of the divorcing spouses.
- Either spouse’s outstanding child support and/or child custody obligations from previous marriages.
- The total value of each divorcing spouse’s separate property.
- Damaging actions of either spouse that affected the marriage. This may include acts of domestic violence, gambling debts, or infidelity.
These factors often require a lengthy investigation and complex discovery procedures. If you are preparing for a divorce in Illinois, Kansas, Missouri, Oklahoma, or any other state that follows an equitable distribution statute, it’s important to hire an experienced divorce attorney who can effectively represent your side of the case.
A good attorney will help you carefully evaluate the property that will come into question during equitable distribution proceedings. Your attorney should help you identify which assets are inherently subject to equitable distribution, such as a home you and your soon-to-be ex-spouse purchased together after marrying, as well as those assets that count as your own separate property.
Legal Representation Is a Must in Equitable Distribution Divorce
Your attorney will also help you account for the other main difference between community property states and equitable distribution states. More types of property may qualify as marital property, but the split may not be exactly 50/50. If there are any extenuating circumstances that would lead to one spouse obtaining more property than the other, your attorney should be able to identify them and help you prepare accordingly.
Your total share of the marital property in your divorce case could ultimately boil down to your attorney’s ability to argue in favor of your means and needs during divorce proceedings. This is just one of the reasons it is essential to hire a Midwest family law attorney as soon as possible when you expect to divorce.