During the divorce process, things acquired from you and your spouse are split up and determined whether they are “yours,” “mine,” or “ours.”
This property collected by you and your spouse during marriage is called marital property and includes property, assets, and debt. The purpose of dividing the assets is to ensure that the marital property is distributed through equitable distribution, or that the property is economically fair. To determine whose is whose during the divorce process, it is important to follow these steps.
Decide Whose is Whose
First, you will have to decide what is a marital asset and what is a non-marital asset. For example, a gift would be a non-marital asset, even if the gift is from your former spouse’s family. Marital property does not include what was separately owned by you or your spouse. This may be any property you owned before marriage, gifts, or inheritance. Property protected by a prenup would also fall into the category. This property is considered “separate property.”
If you choose to commingle your separate property, such as items without your spouse’s name in the title, the items may gain marital property status. Even if property acquired during the marriage has only one spouse’s name attached, the property is often considered marital property no matter whose name is on the title.
Hire an Attorney
Though it is almost always faster for a couple to sort through the division of property together, sometimes an attorney is needed. If you are unable to agree with your spouse, you will have to hire an attorney to determine what property is to be separated, answer any questions, request documents, and make the request for a formal divorce. This can slow the divorce process. If you are unable to agree with your spouse, it may be a good idea to hire an attorney. Make a list of all of the assets including financial funds, property, and assets you and your spouse own. Your attorney can speak with your spouse or your spouse’s attorney to speed up the divorce process. When an agreement is reached, the property division agreement can be signed, and your divorce can be finalized.
Understand Equitable Distribution
Kentucky is a common law state and favors equitable distribution. There are no community property laws, but if you lived in a state with community property and then moved to a state, like Kentucky, that does not have community property, you will not lose your pre-existing property rights. This means marital property is not automatically assumed to be owned by you and your spouse, and you will need to have the property divided in court. The goal is to divide the property fairly, but not necessarily equally.
Work it Out Together or Work it Out in Court
You and your spouse are eligible to divide your property on your own through a separation agreement. Though you can agree with your spouse, the court still can veto the unconscionable (extremely unfair) parts of the agreement. If you and your spouse are unable to divide the marital property on your own, the court will divide it for you.
Certain factors are taken into consideration when martial property is being divided by the court:
- Each person’s contribution to gaining the marital property (stay-at-home spouses are taken into consideration)
- Each person’s circumstances such as having one spouse at home with the children
- Length of the marriage
- Value of the marital property divided between each person
Court Consideration for the Homemaker
If you or your spouse is an older housewife or stay-at-home dad, the property division should take into consideration the decades of life as a stay-at-home spouse or parent. It is possible that because you or your spouse was a homemaker, the skills at the time of divorce are substandard. As a result, the standard of living may drastically be reduced by the divorce. The division of property may be divided in a way that seems unfair to help your or your spouse keep an equal and fair economic standard.
Evaluate Retirement Funds
Some of the hardest items to divide include retirement benefits. The retirement does not always specifically belong to the individual the name is under. Retirement benefits can be considered marital property, and the other spouse may be entitled to payment from the fund. If you and your spouse have a retirement fund that needs to be evaluated, ask an attorney for a QDRO (Qualified Domestic Relations Order) document which will help determine who receives what from the plan.
Some of the hardest items to divide include family business funds. The value of the business at its present state and for future profits must be taken into consideration. Jointly owned businesses can often be divided simply through a buyout agreement. Some spouses separate business from separation clauses and others can remain business partners after divorce. Although, remaining business partners is often unlikely.
Ultimately, the better you can work with your spouse to divide the property, the more property you both will be granted.
For a free evaluation of your divorce case and further information contact The Bryant Law Center at firstname.lastname@example.org.