If you are going through a divorce, and are unable to reach an agreement with your spouse regarding the distribution of property, the court may make that determination for you. In order to avoid such a scenario, it is recommended that you establish a property division agreement that is acceptable to both of you. However, you should also bear in mind that the court has discretion to accept or reject any agreement.
In dividing property during divorce, the courts adhere to an equitable distribution model, which is not always fair to both spouses. Any property that was acquired during the course of the marriage is referred to as marital property, and anything that you obtained independently, prior to marriage, is considered to be separate property. However, there are exceptions to this rule, including property that was acquired before marriage but that increased in value during the marriage.
For instance, if you bought a home in your name before marriage, the home remains separate property. But if you and your spouse rented the home to tenants, and collected rental payments, the rent is considered to be marital property.
If you and your spouse have children, you may wish to consider having the spouse who has primary physical custody, to remain in the home. In this way, the children can remain in a familiar environment.
Another factor to think about with regard to division of property is spousal support. There are many ways in which to coordinate spousal support with property division. For instance, the spouse who pays alimony may receive a bigger portion of the property in order to justify the additional expense. In addition, where there is a significant gap in income, the less affluent spouse may receive the marital home as well as spousal support to make certain that the property is preserved.
If you are experiencing a divorce, and have questions concerning division of property, you should consult a family law or divorce attorney.