What corresponds to him to each person in a marriage, after divorce or after the death of one of the spouses depends on whether the couple lives in a state that applies the principle of separation of property, or one that applies the principle of marital property. During the marriage, these classifications may seem trivial, but in the unfortunate cases of divorce or death, these details take on great importance.
States which apply the principle of separation of property
The majority of states apply the principle of separation of property. What does it mean to live in a state that applies the separation of property? The term “separation of property” is simply a term that is used to determine ownership of the marital property (property acquired during the marriage). The system of separation of property provides that the property acquired by a member of a married couple belong fully and exclusively to that person. Of course, if the title or deed of ownership of a good is put in the name of both spouses, that the property belongs to both. If the title of ownership of the well contained the names of both spouses, each one is owner of half of the interest.
[alert-note]For example: if wife buys a car and puts it in your name only, this car belongs only to her. If the wife buys a car and puts it in her name and her husband’s, the car belongs to them both.[/alert-note]
Distribution of property in case of death or separation
When one spouse dies, their separate property are distributed according to your will or according to what established by its rightful executor, in case of not having a will. The distribution of the marital property depends on how to share the property the husband and wife. If you have property in “joint tenancy with right of survivorship” or “tenancy indivisible”, the property belongs to the spouse who survives. This right is independent of what you set the testament of the deceased spouse. However, if the property was classified as a “tenancy in common”, it may be a person other than the surviving spouse, as provided by the last will and testament of the deceased spouse. Not all properties have a title or a deed. In this case, usually it is up to the person who paid for the property or received it as a gift.
If the couple divorces or obtains a legal separation, the court will decide how to divide the property with her spouse. It is clear that the couple can establish an agreement before marriage, explaining how to distribute the property with her spouse after a divorce.
States which apply the principle of matrimonial property
The states that apply the principle of matrimonial property are Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin. These states apply the principle which states that all property acquired during the marriage are considered “marital assets”. Marital property in these states, are the property of both spouses equally (50/50). These marital property includes earnings, all property bought with those earnings and all the debts incurred during the marriage. The matrimonial property begin when you set the marriage, and end when the couple is separated physically with the intention not to continue the marriage. Therefore, any gain or debt arising after this time are considered to be the property of the individual.
Any asset acquired before the marriage is considered separate property and belongs solely to its original owner. However, a spouse can transfer the title of any of their individual properties to the other spouse (as a gift) or to marital property (naming the spouse intervenes in a bank account). The spouses can also put in common their separate property with marital property, for example, by adding funds acquired before the marriage to the funds during marriage.
Spouses may not transfer, alter, or remove any article that belongs to the matrimonial property without the authorization of the other spouse. A spouse can manage your half as you want, but the whole includes the corresponding half of the other spouse. In other words, that spouse may not lose the right to his half.
The individual properties include
- The properties that belonged to one spouse before the marriage
- The properties gifted to a single spouse before or during marriage
- The properties that are inherited by only one spouse
Marital assets include
- The money that both spouses earned during the marriage
- The goods purchased with the money which both spouses earned during the marriage
- The independent properties that have been mixed with marital assets that cannot be identified
[alert-note]Example: the spouses take ten years of marriage. The wife has a successful career as a doctor and uses his winnings to buy a car. This car is well married, and belongs to the husband and the wife in equal measure.[/alert-note]
[alert-note]For example: the husband has a valuable old piece of furniture that he acquired before the marriage. This antiquity belongs exclusively to the husband, as individual property. The old is not good marital because it was acquired before the marriage. If the husband wants to give your spouse half of the interest in the old, you can do it. From that moment on, the old part of the marital property.[/alert-note]
Distribution of property in case of death or separation
When one spouse dies, half of the marital assets passed to the surviving spouse. Their individual properties can legarse whom you appoint in your last will and testament, or, of not having one, by the rightful executor. Many of the states that apply the principle of good marriage offer an interest called “good marriage with right of survivorship.” According to this principle, if a couple has the title or the deed of a property, usually a property, in case of death of one spouse, the title automatically passes to the surviving spouse, in order to avoid legal proceedings.
If the couple divorces or obtains a legal separation, all marital assets are divided equally (50/50). The individual properties of each spouse are distributed to its owner and is not divided in accordance with the rule of 50/50. At times, certain economic circumstances warrant the assignment of certain assets to one spouse in its entirety, but each of them gets 50% of all marital assets, in relation to the total economic value. This is very common in the case of domiciles of marriage. Since it is not possible to divide a house in half, often the court will assign the house to one spouse and the other receives other assets of a value equivalent to half the value of the house.
Before marriage, the couple may have established a agreement to how they should divide the marital property in case of divorce.
Exceptions to the rule of equitable division:
- If one of the spouses takes possession unlawfully of the good of marriage, either before or during a pending divorce.
- If one of the spouses has debts in education. This is equivalent to a debt owed individually. In the case of divorce, each spouse will correspond to their loans guaranteed student (GSL).
- If one of the spouses is a civil liability that are NOT a result of activities to the benefit of the marital assets.
- Restitution for personal injuries is well double the duration of the marriage, but after divorce belongs to the injured spouse.
- The term “real negative” refers to a situation in which the debts and liabilities of marriage outweigh the assets available to cancel them. In this case it is considered the relative capacity to pay the debt of each spouse. The objective is to protect creditors.