Determining Marital Vs. Separate Assets When You Are Going Through A Divorce
When you and your spouse have decided to divorce, there could be a sizable amount of assets for you to divide. Your assets will be divided based on the state in which you live. While the majority of the states are known as equitable distribution states, the remaining states are community property states. In those that are equitable distribution, assets are divided by what is deemed fair when looking at the potential for future earnings. In community property states, all marital assets are divided in half, regardless of the earning capacity of either spouse. You can choose to come with an agreement to divide your property, or you can ask that the judge on your case divide the assets for you if you are unable to come up with a consensus.
Assets that are Considered Separate Property in a Divorce
If you contributed to a retirement plan prior to getting married, this is considered separate property. In addition, if you receive an inheritance, and you keep the funds in a separate bank account throughout the marriage, these funds are considered separate property and are yours to keep. Basically the property you bring into a marriage is considered separate property, and it is yours to keep in the event of a divorce.
Assets that are Deemed Marital Property When Dividing Assets in a Divorce
Anything you and your spouse purchased together is considered marital property. It doesn't matter if the income of one party paid for your home, or how much each of you contributed financially to the marital home. If you acquired the property together for the use of both of you, it is an asset that is divided for the benefit of both of you. If your spouse contributed to a retirement account throughout your marriage but you don't have one, this retirement account is considered marital property and both parties are entitled to a share.
It gets tricky when there are a number of assets from a marriage yet both parties can't come up with an agreement. You should look at what you want most out of the marital property, and try to prioritize your desires. At some point you are going to have to make some concessions, and knowing what you want is essential.
If you are in the middle of a divorce and you aren't able to come up with a separation agreement with your spouse, it's time to talk with an attorney, such as Robert L. Flanagan.
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