Before you begin divorce proceedings through a divorce lawyer it is important to understand that not all states have the same rules concerning the division of marital property. This is especially true if you live in a community property state since those states consider all property you own when entering the marriage as belonging to both parties except in very rare cases. Some states also have their own definitions of what actually falls into the category of marital property.
In spite of different state regulations concerning the definition of marital property, the following situations are usually uniform in all the states:
- All gifts and inheritances either party received before or during the marriage
- Any purchases made using funds either party had acquired before the commencement of the marriage
- Any of all property that was excluded in a prenuptial agreement
- Any appreciation in the value of property that either owned before the commencement of the marriage provided the appreciation was not caused by the addition of marital funds
The following nine states are community property states meaning each spouse is entitled to half of all property either acquired during the marriage:
- New Mexico
In each of the other 41 states there is a distinct difference in the way things work and what constitutes marital property under the laws of those states. In order to completely understand the laws in the state where you are filing divorce, it is essential to consult with a divorce lawyer and become familiar with the divorce steps in your individual state. Many states define marital property as not only property that is acquired during the marriage but also any property either acquires in anticipation of the marriage. For instance, in some states buying a house because of your upcoming wedding may still result in it being counted as marital property even if it is only in your name.
There are several factors the courts will take into consideration in its determination of a fair and equitable divorce settlement in the 41 states that are not community property states:
- The financial status of both husband and wife
- How many individual assets each party in the divorce holds
- Each party's current income and future earning capacity after the divorce
- The treatment of each party toward one another during the marriage
- Any illegal acts by either party to hide marital assets and thus prevent the other party from acquiring an equitable portion of those assets
- The effect of the divorce regarding future needs including the ability to secure employment to become self-sufficient as well as retirement planning.
- The amount of debt each party will be assigned in the divorce agreement
There are substantial differences among the states regarding the definition and distribution of marital property. Because these differences exist it is essential for anyone contemplating divorce to contact a divorce lawyer to negotiate on your behalf. It is not advisable to attempt to handle things yourself unless you have no assets.