Frequently Asked Questions About Property Division in a Divorce

Posted on: 20 April 2021

One of the most pertinent issues in a divorce is how property will be distributed. It's essential to hire a divorce lawyer to ensure you get a fair ruling. Here are some answers to the frequently asked questions about property division in a divorce.

What Is Community and Separate Property?

Community property is all income earned during the marriage and everything purchased with that income. If there are debts incurred during the marriage, they're considered community property debts. The only exception is if the creditor intended to seek payment from the separate property of one spouse.

On the other hand, the separate property of one spouse includes inheritance and gifts. It also includes personal injury awards and pension they were entitled to receive before marriage. Any property purchased with the spouse's separate funds is separate property. If one spouse owned a business before the marriage, it's their separate property. However, a portion of the business may be deemed community property if it increased in value while the spouse was married.

What Does Equitable Distribution Mean?

Equitable distribution is where the court presides over the division of property. When a couple cannot agree on dividing property, the court schedules a hearing and divides their marital property based on the equitable distribution theory

The court will consider some factors when dividing marital property, including each spouse's income, property, and debts, the length of the marriage, the age of each spouse, and their physical and mental health. The court will consider how a spouse contributed to the other's educational and career opportunities. The tax consequences affecting the property division will factor in the court's decision. 

Lastly, the court will consider the custodial parent's need to own and occupy the marital home. To increase your chances of a fair ruling during an equitable distribution procedure, make sure you consult a divorce attorney. 

How Is Debt Divided in a Divorce?

The court will divide a couple's debts when dividing property and money. In states like New Jersey, where equitable distribution laws are applied, both spouses have an equal share of marital debt. For example, if one spouse incurs debt during their marriage, the debt will be split between them during a divorce.

There's also separate debt. This is when a spouse goes into a marriage with debt. When dividing debts, the court will distinguish between marital and separate debt. One spouse's separate date will be their sole responsibility. It's important to note that laws for dividing debts and assets vary by state.