Divorce can be a complicated process, overwhelming you emotionally and making you feel lost as to what will happen. Issues such as child support, alimony and property division must be dealt with and they are not always easy. It can help to have a basic understanding of how a court will proceed.
There’s a presumption that property belongs to both spouses
When a court begins the process of dividing property between spouses, it is important to note that it is not just looking at assets – liabilities are also part of the picture. And there is a presumption that all assets and debts acquired during the marriage belong to both spouses and will be divided equally between them.
Because of this presumption, in a simplistic division of property, all of the property will be divided equally. Every asset and every debt will belong to both spouses equally and each spouse will have a 50% interest in those assets and debts. However, things are rarely this straightforward.
Separate property
Sometimes assets or debts can be owned entirely by one spouse. One spouse may have owned a piece of property prior to the marriage, for example, and may retain sole ownership throughout the marriage.
So long as the property is not used for the benefit of the marriage or commingled with other marital assets or debts, the spouse who owned it will retain it after divorce. This concept of separate property can also apply to inheritances received during the marriage itself.
Fairness can overcome the presumption of equality
There are also times when an equal division of property would be unfair to one spouse. If this is the case, the court has the authority to divide property in a way it deems fair, based on the circumstances of the divorce and marriage.
However, it is up to the individual spouse to make the claim that an unequal division is appropriate. In order to overcome the presumption, that spouse must then provide sufficient evidence to convince the court that an equitable distribution is more appropriate than an equal distribution.