If you are planning to end your marriage in Missouri, Illinois, Oklahoma, or anywhere else in the Midwestern United States, it’s important to know the legal statutes that will come into play as your divorce case unfolds. Many people hold misconceptions about how property division works in a divorce, and every state upholds unique laws for the property division process. However, property division laws at the state level are divided into two general categories: equitable distribution laws and community property laws.
An experienced attorney can help you prepare for property division in divorce by outlining which property division laws will come into play. Most Midwestern states follow equitable distribution laws, and while not as strict as community property statutes, they often lead to more complex property division proceedings.
What Is Community Property Law?
States like California, Texas, Nevada, and a few others uphold community property statutes for divorce. Community property law states that any and all property gained by either spouse while married is the community property or marital property of both spouses. Community property law also dictates that all marital property must be split equally between divorcing spouses regardless of the reason for the divorce. While some assets may be awarded to either spouse, the court may require the couple to liquidate assets that cannot be divided and split the proceeds.
If you live in a community property state, it does not matter if the breakdown of your marriage was your ex’s fault; you must still divide all of your marital property entirely equally. Community property statutes are often deemed overly strict and ultimately unfair in many divorce cases, but the positive side of these laws is the fact that since the law is so clear, property division proceedings are usually conducted more swiftly than in equitable distribution states.
What Is Equitable Distribution?
Most states in the US uphold equitable distribution laws for divorce. Equitable distribution, as the name suggests, aims for the most equitable, but not necessarily equal, division of property in divorce. The court will consider numerous factors to determine the best way to divide a divorcing couple’s marital property, including each spouse’s separate property holdings, income, job prospects, age, and medical status. The court must evaluate all of these factors to determine the best way to divide the divorcing couple’s marital property and ensure the most equitable possible outcome.
In states that uphold equitable distribution laws, family court judges tend to prefer the most final divorce orders possible, meaning that the judge will strive for a division of property that precludes the need for alimony if possible. This may mean providing a lower-earning spouse with a greater share of marital property than the higher-earning spouse. However, alimony is still a potential outcome for some divorce cases. The court will also consider any prenuptial contracts the couple may have signed in property division proceedings and determine whether they are applicable and enforceable.
How to Prepare for Property Division in Your Divorce
Property division is one of the most contentious aspects of divorce. It’s not uncommon for divorcing spouses to vehemently disagree about who gets what out of their shared marital property. Financial disclosure from both parties is crucial, and both parties must provide complete and accurate financial records as their divorce unfolds. This ensures that a family court judge can make a reasonable and fair ruling on property division if the couple litigates their divorce.
Your attorney can help you prepare for property division proceedings in many ways, including helping you gather the records and documentation you must produce and helping you make compelling arguments to secure the marital property you want the most. Your attorney can also help you establish your separate property ownership rights over the property you owned prior to marrying and other assets that qualify as your sole separate property, such as inheritance or gifts.
What Qualifies as Marital Property in an Equitable Distribution State?
The equitable distribution laws throughout the states of the Midwest define “marital property” as any property, income, or other assets gained by either spouse during the course of their marriage. In most divorce cases, marital property includes real estate the couple purchased while married, jointly shared bank and investment accounts, assets purchased using shared funds, and any other property purchased together. Marital property will also include all income earned by both spouses during their marriage.
Separate property, on the other hand, includes anything a married spouse owned before they were married. However, state laws can allow some separate property to legally qualify as marital property under certain conditions due to a legal concept known as “transmutation.” Put simply, if one spouse improves their spouse’s separate property or causes the value of that separate property to appreciate in value, the court may deem the property in question to be marital property instead of separate property. For example, if you owned a home before marrying, the home would count as your separate property in divorce. However, if your spouse helped pay for renovations that significantly increased the property value of your home, or if you refinanced your home under both of your names, the house would then qualify as marital property.
How Your Attorney Will Help With Property Division
Understandably, property division is one aspect of divorce most likely to cause contention between divorcing spouses. Hiring an experienced Midwest family law attorney to represent you in divorce is one of the best ways you can avoid significant stress and expense in handling your property division proceedings. Your attorney will assist you with financial disclosure to ensure you provide complete and accurate accountings of your assets.
Additionally, your attorney can help to ensure that your soon-to-be ex-spouse is honest in their financial disclosure as well. For example, if you have any reason to believe your spouse is hiding assets to protect them from property division in your divorce, your attorney may consult with experts like forensic accountants to uncover the truth of the matter and ensure your property division proceedings unfold appropriately under applicable laws.
If you have any concerns about property division in your upcoming divorce, reach out to an experienced divorce attorney as soon as possible so they can provide the clarity you need to approach your divorce with confidence.