When a client sits down with a divorce attorney, one of the topics that will inevitably come up is the idea that assets from the marriage will be split 50-50. This is a deeply ingrained notion in the American view of divorce law, and it deserves to be examined more closely. Here are 5 things anyone facing divorce or thinking about it needs to know.
The assets you brought into a marriage generally will remain yours on the way out of the arrangement. One exception arises from situations where pre-marital assets are transformed into marital property by adding your partner to a title or an account.
Bear in mind that a handful of states, mostly western ones, do take a 50-50 approach to divvying up assets acquired during the marriage. These are known as community property states.
It's also worth noting that many states use a standard known as equitable distribution. This means the court will make a judgment about what's fair. In practice, this leads to a less financially advantaged partner still getting less than 50% of assets. That applies even in states that, in theory, take something closer to a 50-50 view of division.
Once a couple enters into a legally recognized separation agreement, acquired assets stop counting as marital assets. Some states also consider pre-marital assets a form of separate property.
Likewise, some odd forms of assets are considered separate even if they were acquired during the marriage. For example, a personal injury settlement is seen as separate property. The reasoning is that the settlement is designed to sustain an injured party rather than to pay for their marital life. Many types of inheritances and trusts are treated as separate, too.
Generally, prenuptial agreements will govern the disposition of assets that were acquired during the marriage. There are two exceptions, and both are largely procedural complaints about how the agreement was reached.
First, fraudulent conduct, such as misrepresenting one's situation going into the marriage, will usually nullify an agreement. Secondly, excessive pressure applied prior to the signing can nullify an agreement. For example, one party might have insisted on the agreement as an all-or-nothing deal in exchange for entering the marriage.
One thing to remember is that child support is seen as a thing outside of the division of assets between partners. A support obligation might push you up to or past 50% of your assets and income if it's large enough.
To learn more, contact a divorce attorney.Share