Division of real property
Real property includes any property associated with land, including houses, condominiums, and empty lots. At trial, the court will divide the equity in real property if it finds that such equity was acquired or paid for during the marriage. Sometimes houses and other real property are paid for in part before the marriage and in part after the marriage. In such a case, the equity would be partly marital and partly non-marital.
Division of personal property
Personal property includes all tangible property that is not associated with the land. It includes all vehicles, furniture, and all items that people keep in their homes. At trial, the court may divide such items if the court finds that they were acquired and paid for during the marriage. Parties rarely dispute the division of small items such as clothes and dishes. However, they often dispute more expensive items such as vehicles and jewelry.
At trial, when dividing marital property, the court will usually not transfer title to the property. Therefore, each spouse will likely keep all property to which they have a title. The property that is titled jointly will usually be ordered to be sold and the proceeds divided. The court then must make the total division “fair”. To so, the court may grant a “monetary award.” A monetary award is a payment of money that the court orders one party to make to the other in order to adjust the amount of marital property that each party has and to make the total division fair.
In the course of determining the amount of a monetary award, the court must consider numerous factors. Such factors include:
- The contributions of each party to the well-being of the family.
- The value of all property interests of each party.
- The economic circumstances of each party.
- The circumstances that contributed to the estrangement of the parties.
- The duration of the marriage.
- The age of each party.
- The physical and mental condition of each party.
- How and when the specific marital property was acquired.
- The contribution by either party of non-marital property to the acquisition of real property.
- Any award of alimony.
- Any award of family use property.
Family use property
If the parties have a child that lived in their house during the marriage, and if one party receives custody, the court may grant to such party “use and possession” of the house for up to three years on the grounds that the house is “family use property.” The purpose of use and possession is to give the child additional stability by allowing the child to continue living in a home to which the child is accustomed. During such time, the court would refrain from dividing the house and would grant to the custodial parent exclusive right to live in the house with the child. The court may also order the other party to pay the mortgage. The court would likely order that, at the end of the use and possession period, the house be divided as normal.
Parties often try to reach a written agreement on how to divide marital property instead of allowing the court to divide it. Doing so has many advantages. It allows the parties to avoid the risk that the court will divide the property in a way that the parties do not want. It also allows the parties to save the time and expense associated with litigating their property dispute all the way to trial.
In general, parties can enter into two kinds of agreements in their divorce case. They are:
- Prenuptial agreement
- Separation agreement
A prenuptial agreement is one that the parties reach before they get married in order to establish their rights in the unfortunate situation that they later decide to get divorced. A separation agreement, on the other hand, is one that the parties reach when they are separating and anticipate obtaining a divorce. Both agreements often provide detailed terms related to alimony and the division of marital property. An attorney can be extremely valuable in negotiating and drafting such agreements.