July 29, 2021

Most couples understand that when filing for divorce their property will be divided. What many couples don’t realize is which assets are considered and how this division will be handled legally. Even in the case of a healthy divorce, property division can be a sticky point, especially when there is a disparity in the earnings or assets of each spouse.

What Property is Considered in a Divorce?

All property will be divided in a divorce. Generally speaking, this means any assets acquired during the marriage, even if they were purchased or paid for by only one spouse. A judge will have you list all the community property, and then a judge will divide your property and sign the Final Decree of Divorce with a list of the community property each spouse will keep. When considering your assets, it’s important to know what is considered community property and what is considered separate property.

Community Property and Divorce

Community property is all the assets you and your spouse have at the time of the divorce except for property that a spouse can prove is separate. Community property includes real estate, a business, cars, money, retirement accounts, furniture, and anything else earned or purchased during the marriage. It does not matter which spouse’s earnings were used for the purchase or if only one spouse’s name is on the title. Community property should be divided in a way that is “just and fair”. This does not necessarily mean a 50/50 split.

Separate Property and Divorce

Separate property includes property owned by one spouse before the marriage, property received as a gift or inheritance during the marriage, money received for personal injury during the marriage, and stock dividends and capital gains on the separate property investments. If property was acquired during the marriage, even if it was paid for by one spouse, it is considered community property. During a healthy divorce, many spouses will divide property fairly and accordingly, considering individual purchases, but it is important to know what is legally seen as community property. Unless both spouses agree, one spouse must prove that something is separate property. The law says that separate property cannot be divided. Essentially, unless assets were held in your name alone prior to the marriage, they will likely be considered community property.

Dividing Property in a Healthy Divorce

When you and your spouse can come to an agreement over how to split your property and debt on your own, the judge will typically approve your agreement. You will file paperwork that indicates the division and that both spouses are in agreement. When you can come to an agreement on your own, you can often save both time and money. When doing this, however, make sure that you include all community property in the agreement, and it is still vital to speak with a lawyer. If you own property together, especially if you have a mortgage, a lawyer can help ensure that you have addressed all the potential issues.

Things to Consider about Your Assets When Filing for Divorce

There are a few important things to understand about your assets:

• Generally speaking, courts will not consider “fault” in a divorce when dividing property. It does not matter which spouse chose to file or if one spouse had a behavior which caused the divorce.
• The spouse with primary custody of minor children may get to stay in the house, but this does not mean that the spouse was “awarded” the home. A lawyer can best advise you on how to proceed. In many cases, the best option is to sell the home and divide the proceeds.
• When a judge divides your assets, they will consider several factors, such as each spouse’s income, debts, and property. Also a point of interest is how long the marriage lasted, ways in which each spouse contributed to the marriage, tax consequences, and both spouse’s physical and mental health. The court will not consider child support and alimony when dividing property.

Every divorce is different, and even a healthy divorce can present complications when dividing assets. When filing for divorce, the best way to understand how your assets and property will be divided is to speak to an attorney who can advise you throughout the process. If you’re going through a divorce, I’m here to help. I’m an experienced family law attorney practicing in Toledo, Ohio and I know how to help you navigate this process. Contact my office today.