Division of Property in a Divorce

The division of property in a divorce is usually determined by mutual agreement between the parties to the action. When the parties cannot agree, the court will determine the division of property by applying one of two rules: The rule of equity or the community property (or marital property) law. The application of these rules varies by state.

Equitable distribution

Under equitable distribution, the assets, debts and property are distributed based on fairness. This does not mean property will be divided equally between the parties. Courts will consider many factors that will determine who gets what; these factors include the financial status of the parties, the earnings potential of the parties, the contribution each party made to the marriage, and -- in some states -- who is at "fault" in the divorce.

A husband who earns less than the wife may receive more of the real property under equitable distribution.

The court may determine what percentage of the total assets each party should receive, and then distribute a combination of liquid assets, real property and debts that would amount to the percentage they're deemed to be owed.

A court could determine that a wife would receive a portion of the husband's partnership in a law firm.

Community property

In states that follow the community property rule, all property of the parties will be deemed either community property to be divided equally between the parties, or separate property that belongs to only one party. All business conducted during the marriage, wages earned, all debts incurred and everything bought with those wages will be divided equally.

With regard to the money earned while they were married, the husband who earns less than the wife will receive the same money as the wife who earns more. This is what Eddie Murphy referenced during his infamous rant on marriage in his concert film Raw.

If the husband was a partner in a law firm before he was married, he will retain his partnership, however if the value of his partnership increased during the marriage, then the wife will be entitled to a portion of the value. Also, the wages earned during the marriage will be divided equally.

If a party to the divorce received a sizable gift or inheritance from grandma, that would be considered separate property and the party will be entitled to keep all of it.

Whenever dealing with legal issues, before making a decision, consult an attorney in your state with experience in the matters you have questions about.

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