How do we divide property in a divorce?
An aspect only of Divorces, property division can be a difficult and stressful task for clients and lawyers alike. Many cases involve simple property issues—who keeps which car, who stays in the house, or perhaps how the sale proceeds should be split. However, it can also become daunting and meticulous when more complicated forms of property, such as retirement accounts, military retirement, stock options, royalties or other land rights are involved. Another potential for conflict is when a disproportionate amount of the community estate (all real and personal property belonging to the parties as a married couple, usually involving property acquired during the marriage) are being sought by one or both spouses, or when spouses are making claims for separate property (property not part of the community estate, often because it was a gift or because it was acquired prior to marriage).
Another important consideration is how property and custody issues, when coexisting, often affect one another. Courts would, for example, be reluctant to award a given parent primary conservatorship of a child without awarding that same party the family residence where the child has grown up.
The court begins by presuming a 50/50 split of the community property, but there are myriad factors that can move the needle one way or the other. These include:
- Disparity of income
- Earning capacity and education
- Contributions to the family home
- Disparity of separate property
- Fault (adultery or cruel treatment)
There’s no conclusive list of factors and the judge has a lot of discretion in deciding what a “justified” division actually looks like. A good attorney will advise their client to keep their behavior and position in line with their theory of the case as it progresses, but a case is an organic thing that develops and changes, even after you file it. That’s why it’s vital to secure the services of an advocate who can competently identify influential factors early on while they assess, set up, and execute your case.