Services Provided by a Property Division Lawyer (2024)

Issues Resolved in a Divorce

Divorce is a procedure for winding up the financial and legal relationship of a married couple and restoring them to the status of unmarried. This allows the ex-spouses to remain single or marry other people.

As part of this winding-up process, the couple must resolve four issues.

Child Custody and Support

Child custody and support are usually the most emotional issues resolved in a divorce. When the court decides these issues, it uses the “best interests of the child” to determine where the child will live and how the parents will make important decisions in the child’s life.

Additionally, the court will also determine how the parents should use their resources to financially support the child. The court must also decide who will pay for the child’s health insurance. Typically, the parent who has the child for a greater percentage of time will receive financial assistance from the other parent.

Child custody and support play a role in property division. Courts in many states, such as Washington, will award the family home to the parent living with the children during the week. This allows the children to remain in the same school and keep the same friends. A property division attorney can present these arguments on behalf of a parent.

Spousal Support

Spousal support, also called alimony, is not awarded in every divorce case. Instead, a spouse must give reasons for awarding spousal support in their case. Again, property division will play a role in the spousal support determination.

New York law, for example, considers the income and property of the spouses after the divorce in deciding whether to award spousal support.

Suppose that you have spouses who married late in life. One spouse had accumulated significant property, such as a home and vehicles. The other spouse came to the marriage with very little property. The court may decline to award the wealthier spouse’s property to their less wealthy spouse.

However, the court may take into account the disproportionate award of property in awarding alimony to the less wealthy spouse.

Property Division

While child custody is the most emotional issue, property division is often the most complicated. The couple’s property falls into two classes. Separate property belongs to one spouse and usually includes the following, depending on your state:

• Property acquired by a spouse before the marriage

• Inheritances

• Gifts, including gifts from the soon-to-be ex-spouse

• Personal injury settlements and awards

Marital property includes anything that is not separate property. Confusingly, separate property can become marital property. For example, suppose one spouse bought a car before the marriage. After the marriage, they paid for insurance and repairs from the couple’s joint bank account. The vehicle might now belong to the marital estate.

Another issue divorcing couples may face happens when they build a business together. The spouses must find a way to co-exist as business partners after the divorce or allow the court to break up their business.

How Do States Divide Marital Property?

Your property division lawyer uses your state’s laws to fight for the property you are entitled to receive. If you have a prenuptial agreement, the court will usually follow its terms when dividing property in a divorce. If you do not have a prenup, the court will follow the state’s laws for property division. States use two systems for dividing property in a divorce.

Community Property States

The following nine states use community property rules to divide property:

• Arizona

• California

• Idaho

• Louisiana

• Nevada

• New Mexico

• Texas

• Washington

• Wisconsin

In these states, the court classifies property as separate, community, or mixed. Community property includes the entire marital estate and a prorated share of mixed property.

Mixed property is partly separate and partly community. Thus, a retirement account that a spouse funded both before and during the marriage contains mixed property.

Separate property goes to the spouse who acquired it. The court divides community property equally between the spouses. For example, Wisconsin’s community property statute states that each spouse receives 50% of the community property upon dissolution of the marriage.

Equitable Division States

The majority of states use equitable division rules for property. This system starts the same as the community property system, with the judge classifying property as separate or marital. However, instead of dividing marital property equally, the judge divides it fairly.

As a result, the court can award one spouse more property. Some reasons for awarding more property include:

• Unequal job prospects

• Mental or physical disabilities that prevent one spouse from working

• Financial misconduct by one spouse

• Unequal education, such as one spouse forgoing school for the other’s career

In most states, the judge must explain the reasons they distribute property unequally. This allows an appeal court to review the judge’s decision-making.

The Role of the Property Division Lawyer

In a community property state, a property division lawyer will fight to include as much property as possible in the marital estate while keeping their client’s property separate. The lawyer’s role will depend on the property at issue.

If the disputed property belongs to the marital estate, the asset division attorney must persuade a judge to include it and give their client half. Conversely, when the other spouse’s lawyer tries to get a piece of the client’s property, the divorce lawyer must explain why the property is separate.

The role is slightly different in an equitable division state. There, a property division attorney must fight on two fronts.

First, they must battle over what belongs in the marital and separate categories. But even when a piece of property lands in the separate category, the attorney can still argue for an unequal distribution of property to favor their client.

Contact ConsumerShield for More Information

The division of property can affect every other issue in a divorce. ConsumerShield assists spouses facing this critical issue by referring them to lawyers who can represent them. Contact us for a free case evaluation.