For most people, deciding who gets what in a divorce settlement is not an easy task. That’s why many people leave it to the courts. The courts have a number of factors they consider when deciding what property should get divided, who keeps it and how to divide the debt in divorce cases.
Separate versus marital property
Separate property is anything that you acquired before the marriage, including gifts and inheritances. Marital property is usually classified as anything that the spouses obtained during the marriage, including income, assets and debts.
The courts might try to divide marital property equally between the spouses unless there is a compelling reason to do otherwise. However, separate property is typically given to the spouse who owns it, unless there are extraordinary circumstances.
The length of the marriage
The longer a couple stays married, the more likely it is that the courts may consider awarding a significant portion of marital property to the spouse who was at home with children or performing homemaker duties. The rationale for this is that the other spouse has had a chance to accumulate more assets before the divorce.
However, if one spouse has been financially irresponsible, the court may award more of the marital property to the other spouse.
The income disparity between the spouses and their contribution
If one spouse has been out of work or performing only part-time duties, the courts may award more or equal assets to that spouse. The rationale is that this will make up for lost opportunities and allow for a comfortable lifestyle.
The courts may not award the marital property to a stay-at-home parent if he or she didn’t earn an income during the marriage.
When dividing property in a divorce, the courts mainly consider the factors above. It’s important to understand that the court’s goal is to award a fair and equitable settlement that takes all of the factors into account.