If you have determined your main goals for the divorce like we suggested in our divorce negotiation tips, then you should have a pretty good idea of what you need in the property division.
A lot of times during divorce, having as much cash on hand as possible is an important goal. It’s a good idea to look at your state’s guidelines for dividing up property, because it might help you if you get stuck while negotiating, and generally adhering to the guidelines will give you more confidence that the agreement is fair and will be accepted. The courts are usually inclined to accept the parties’ property settlement as long as they don’t find any signs of fraud or coercion. At the same time, the courts can’t protect you, so if your agreement isn’t fair, you’re out of luck.
Make sure you understand and are happy with the terms of your divorce before you file the property division papers with the court. This is where you need to be your own advocate. And if you need, you can have an attorney review your agreement before filing. An attorney is there to protect your rights, if that’s what you need.
Every state has specific clauses in their statutes determining how marital and non-marital property will be classified, and determining how your property will be divided in a divorce. The guidelines will be similar across the states, but there are still unique differences that you should be aware of. Check your state’s statutes if you’re not sure.
Community property state
Generally, most property accumulated during the marriage is considered marital property. There are some exceptions. For example, gifts or inheritances are usually considered separate property, although each state’s laws slightly varies. In community property states, marital property is divided 50/50 unless there is an extraordinary circumstance why it should not be. In equitable distribution states, property is divided in a fair, but not necessarily equal, manner. Here is a list of community property states:
- Arizona
- California
- Idaho
- Louisiana
- Nevada
- New Meico
- Texas
- Washington
- Wisconsin
Just like with other divorce issues, property division is one you will probably be happier with if you are able to settle on your own rather than having the court decide how your property will be split.
Think about your financial situation
When deciding what to do with your property, you should think about your financial situation and your priorities. If you have a lot of marital debt (especially credit card debt), you might want to sell anything you can, and use the money to pay off those debts. Credit card debt can take years to pay off if you just make the minimum payments. During that time, if you’re both legally responsible for the debt and you’ve agreed that your spouse will pay it off, the credit card companies might still come after you if your spouse doesn’t pay. They’re not a party to your divorce, so your final decree isn’t always binding with them.
You should call your debtors to see if you’re legally responsible for the debt. If so, take that into consideration when making property division and debts. If you have a mortgage or car loans that are in both names, you might see if you can refinance. There will probably be a fee for doing this, but you might actually save money if you can get a lower interest rate. Also, you don’t have to worry about your spouse not paying the debt if the loan is in both names. If the peace of mind is worth the cost to you, go ahead and check out your options.
There are a couple of things you can do if you’re not able to pay off the debts or refinance the loans. However, while some of these options might provide some protection, they might not be legally binding. You might want to speak with an attorney to see if there’s anything else you can do for more legal protection. One thing you can do is write to your creditors to inform them of the divorce and ask to take your name off the account. Even if they won’t do that, you may be able to have them close the account or refuse to authorize any more charges without your permission. Where possible, close any accounts that are in both your names.
If you still have debt left over at the time of the divorce, you’ll need to figure out who will pay it. Perhaps one person can pay off all debt in exchange for more property. You should think of who benefited most from the debt. If it’s a car loan, for example… who drove the car the most? If it’s a credit card debt, think of who made the most charges or who most used the items that were purchased.
Summary
The key in property division is to be reasonable. Maybe you can pay off your credit cards by selling your car and getting a less expensive model. Money is often tight during a divorce, and it’s possible you’ll need to make some sacrifices. It’s important to look at the big picture, to decide what you can afford to keep and what makes the most sense financially. It’s critical to plan and keep track of everything. If your spouse handled all your finances during the marriage and you were in the dark, you’ll need a complete inventory of all your assets, debts, and expenses, so you can quickly get up to date.
Here’s a list of typical assets in a divorce and examples for valuing and dividing them, to help you get a clearer picture of what you might be looking at.
