People preparing for divorce often have many questions about the process. Some couples have little to address because they have already established a prenuptial agreement. They made arrangements previously to divide their property if the marriage ended in divorce.
Without a prenuptial agreement, most of the major financial matters require consideration during the divorce process. Divorcing couples can either negotiate arrangements directly with one another or may litigate in family court. Those who set their own property division terms maintain control over the outcome. Otherwise, state statutes dictate what happens with marital property and marital debts.
What is the standard approach for contested property division during divorce proceedings?
The courts want an equitable solution
State statutes instruct judges to establish a fair or equitable way to divide marital debts and resources. Equitable distribution focuses on an overall fair outcome when looking at the circumstances of both spouses.
The first step in equitable distribution is the creation of an inventory of marital assets and debts. Both spouses have to make thorough disclosures to each other and the courts. Judges hearing litigated divorces review the inventory of assets and debts. They also familiarize themselves with other important details about the divorcing couple.
The health and age of the spouses can influence what is fair. Judges also consider the spouses’ earning potential, separate property and contributions to the marital estate. Both paid and unpaid contributions can factor into a judge’s property division determinations.
Custody arrangements for minor children can also influence what might be fair or equitable given the family’s circumstances. Judges have the authority to divide assets and debts. They can order the liquidation of resources or allocate specific assets to each spouse. They can make one spouse responsible for more marital debt than the other.
In short, much is left to the discretion of the judge and how they view the marital situation. It can be very difficult to predict how a judge might handle property division in a litigated divorce. Those who feel strongly about securing specific terms may want to consider negotiating with their spouses as a way of guaranteeing a specific outcome during divorce proceedings. Learning more about the general rules that apply during divorce can help people understand how to prepare for and navigate the process effectively, given their unique circumstances.