Family Law,Separation,Anulment and Divorce

Property
In divorce cases, how often do judges decide who gets what?
Judges rule on major contested issues in only a relatively small number of cases. Instead, the parties--often with help from lawyers--reach an agreement between themselves that they present to a judge for approval. If the agreement is fair, approval is usually granted after a short hearing.
How do judges decide disputed property issues?
Laws vary from state to state. As a starting point, many states allow parties to keep their nonmarital or separate property. Nonmarital property includes property that a spouse brought into the marriage and kept in his or her own name during the marriage. It also includes inheritances received and kept separate during the marriage. It also may include gifts received by just one spouse during the marriage. Some states permit division of separate as well as marital property when parties divorce, but the origin of the property is considered when deciding who receives the property. After allocating separate property, the court divides marital or community property.
What is marital or community property?
Marital or community property is defined somewhat differently by different states, but it generally includes property and income acquired during the marriage. Wages earned during the marriage would be marital property. A home and furniture purchased during the marriage with marital earnings or property would usually be considered marital property.
What if the property obtained during the marriage is in the name of one party only?
That, too, will usually be considered marital property if it was paid for with marital funds, such as wages. For example, if a wife buys a car during the marriage and pays for it with her wages, the car is marital property, even though it is in her name only. A pension is also usually marital property, even though it may have been earned by the labor of only one spouse during the marriage. A pension can be a very significant piece of property. The pension and the family home are often the most valuable assets acquired by a couple during the marriage. If a pension was completely earned before the marriage, it probably would be considered nonmarital or separate property. Marital or community property can be divided by the court between the parties.
How does a husband or wife keep nonmarital property separate and thus less likely to be lost in a divorce?
The main way to keep nonmarital property separate is to keep it in one's own name and not mix it with marital property. For example, if a wife came into a marriage with a $20,000 money market account and wanted to keep it as nonmarital property, she should keep the account in her own name and not deposit any marital funds in the account. She should not, for instance, deposit her paychecks into the money market account, because the paychecks are marital funds and the deposit could turn the whole account into marital property.
If a husband inherits some stock from his mother during the marriage and he wants to keep it as nonmarital property, he should open his own investment account and should not use the account for any investments that he and his wife own together.
If a husband or wife decides to use some nonmarital funds for a common purpose, such as purchasing a home in joint tenancy, that money will normally become marital property. The courts of most states will view the nonmarital property as a gift to the marriage. The property distribution laws have many intricacies and variations between states; understanding them usually requires a lawyer's help.
How do courts divide marital or community property?
Again, the answer varies from state to state. A few states, such as California , take a rather simple approach. They believe property should be divided equally because they view marriage as a joint undertaking in which both spouses are presumed to contribute equally, though often in different ways, to the acquisition and preservation of property. All marital property will be divided fifty-fifty, unless the husband and wife had a premarital agreement stating otherwise. Even in California, there may be complications in the details, such as disputes between the husband and wife regarding the value of community property and deciding what constitutes an equal division. Most states, however, apply a concept called equitable distribution.
What is equitable distribution?
Equitable distribution means that a court divides marital property as it thinks is valid, just, and equitable. States applying principles of equitable distribution view marriage as a shared enterprise in which both spouses usually contribute significantly to the acquisition and preservation of property. The division of property could be 50-50, 60-40, 70-30, or even all for one spouse and nothing for the other (although that would be very unusual.) The percentage distribution need not be the same for all property, and the percentage entitlement may vary from one asset to another. Under equitable distribution, courts consider a variety of factors and need not weigh the factors equally. That gives more discretion to the judge and more consideration to the financial situation of both spouses after the divorce. However, it also makes the resolution of property issues less predictable. There are several factors that are considered by states applying principles of equitable distribution:
Nonmarital Property
If one spouse has much more nonmarital property than the other, that could be a basis for giving more marital property to the less wealthy spouse.
Earning Power
If one spouse has more earning power than the other, that could be a basis for giving more marital property to the spouse with less earning power.
Who Earned the Property
That can be a factor favoring the party who worked hard to acquire or maintain the property.
Services as a Homemaker
Courts recognize that keeping a home and raising children is work. In addition, those services often enable the spouse who is working outside the home to earn more money. Thus, services as a homemaker are a factor in favor of the homemaker. Some courts also apply a related concept of considering whether one spouse had impaired her or his earning capacity because of working as a homemaker. That factor would also favor the homemaker-spouse.
Waste and Dissipation
If a spouse wasted money during the marriage, it could count against him or her when it comes time to divide property. This factor is sometimes labeled economic fault, and may be considered even by courts that do not consider other kinds of fault.
Fault
Noneconomic fault, such as spousal abuse or marital infidelity, is considered in a few states, but most states do not consider it relevant to property division.
Duration of marriage
A longer marriage may be a factor in favor of a larger property award to the spouse with less wealth or earning power.
Age and Health of Parties
If one spouse has ill health or is significantly older than the other, that factor could favor a larger award to the sicker or older spouse.