How Property is Divided in Family Law
Divorce property division can often be an intricate matter. Complicating matters further is when separate assets become intertwined with marital ones and need to be split amongst themselves.
Most states operate under an equitable distribution rule, wherein a judge in court decides how best to divide up your property and debt among you and your former partner. Laws may vary from state to state on this matter.
Marital Property
In most states, marital property is generally divided equally upon divorce; however, factors can play a part in whether one spouse receives more or less than expected of their marital assets.
Non-marital property may be exempted from division if both spouses enter into a legal prenuptial or postnuptial agreement that meets all legal requirements. Separate property that generates income or increases in value through significant personal efforts from either partner may become marital property up to its original value exceeding.
Separate property may become marital property when combined (or “commingled”) with marital assets and debts. For instance, funds deposited from one spouse before marriage into a joint account with their married counterpart might become marital property; similarly if separate assets are used to acquire or repair marital properties they too can become part of the marital estate.
Separate Property
Under certain conditions, separate property can become part of a marital estate for purposes of equitable distribution upon divorce. To prevent such an occurrence, spouses should maintain meticulous documentation regarding any separate property claims – this should include providing evidence as to its source and source chain as applicable (ie inheritance/gift).
Judges in all community property states use a standard known as equitable division to divide assets and debts fairly during divorce. If one spouse fails to disclose an inheritance or gift that actually constitutes marital property, this could cause issues; so couples should always be honest when discussing their finances together – especially investments made together, where “commingling” could render assets marital property by mistake.
Alimony
Alimony is often an essential issue in divorce proceedings, known as spousal support in some states. Alimony helps a spouse level the playing field when one partner forgoes career pursuits to raise children or take care of the home.
Judges take several factors into consideration when awarding alimony payments. They consider each spouse’s ability to earn, taking into account education, training, job skills and local demand for them as they determine salary potential. They may also consider debts between each couple and whether one pays support to former partners or former spouses – such as paying child or spousal support payments from them both.
Spousal and child support arrangements are court-ordered and often difficult to modify; however, modifications are sometimes possible under certain conditions. For instance, either spouse who pays or receives alimony can request a modification if there has been a significant shift in income or finances.
Child Support
Parents have a legal duty to support their children financially. Unfortunately, when one party (usually the father) feels that another is not paying enough child support payments, issues become very contentious. A judge determines child support payments using state law-driven formulas; they also have discretionary power when necessary to depart from these guidelines in certain instances.
Child support orders typically cover basic expenses related to food, shelter and clothing for their recipient child(ren). Other expenses that should be considered in support cases could include childcare costs, medical bills or extra educational costs deemed essential by state laws for their development. Since laws vary depending on your location it’s essential that you consult a family law professional who specializes in your region for guidance on this matter.
If parents cannot reach an agreement regarding child support payments, a court hearing will be scheduled in Family Court to facilitate negotiations between both sides. A Support Magistrate will typically conduct the hearing and collect testimony from both sides before making a ruling regarding payment amounts and schedules.