How will the court divide our assets after my divorce?

Posted by Lauren S. CohenMar 23, 20210 Comments

There are many painful and stressful aspects of a divorce. The division of marital assets is often the thing that causes the most contention among spouses. Knowing how your state's divorce court divides assets will help you to prepare for it, so that you don't get caught off guard.

Equitable division

The vast majority of states in the United States (all but 9) follow a system of property division called “equitable division” or “equitable distribution.” This means that the court looks at a variety of factors that make the divorcing couple's situation unique, and then divide the marital property in an equitable (fair) way.

Equitable doesn't necessarily mean equal. For example, if one spouse's earning capacity, education level and ability to work are significantly higher than the other spouse's, then the court is less likely to divide their marital property 50-50. Since the court decides how to apply equitable distribution on a case-by-case basis, there's no set formula you can use to predict beforehand exactly how big of a share you will get.

The important thing to remember about equitable division is that it only applies to marital property, not to individual property.

Marital and individual property

In general, individual property is anything you owned before entering into the marriage, as well as things that are exclusively in your name (such as student loans). Marital property is usually anything you obtained during the marriage, whether both spouses used it or not. There are exceptions to these classifications, but this is typically how courts categorize assets.

Some things that started out as individual property can become marital property if the whole family uses them, such as a house that you owned before marriage and that your spouse moved into when you got married.

You will be able to keep your individual property after your divorce. Any marital property will be subject to division by the court. This is why it's important for you to know which of your assets the court will likely categorize as marital property. Once you know that, you can prepare to request the items you most want during asset division.