When the parties are going through a divorce the Court will have to determine, or the litigants will have to agree upon, a resolution and disposition of the property, including the debts, of the marriage.

Property covers a vast array of issues.  Among other things, property can include personal property, bank accounts, investment account, retirement accounts, cars, furniture, boats, motorcycles, houses, vacation homes, time shares, life insurance policies, businesses and even debts of any form.  Property or debts are included even if the property, or debt, is only held or titled in the name of one party.

There are generally two approaches used in determining what will be included in a property division.  

One is a community property approach.  In states that use community property as the standard the guiding principle is that if the property, or debt, was acquired during the marriage then it is to be shared equally by the parties with little room for variation.  The second method requires the court to determine the contributions each party made to the acquisition of the property then and based upon the interest each may have, the property is divided.  Some states also use a hybrid approach to determine marital property based upon a combination of these two approaches.

Different property can be handled differently as will be discussed in later articles.  While the laws do vary from state to state, the general approach is to value all of the property and determine all of the debt.  Once this is done, the property will be divided so each receives an equal portion of both the assets and the debts.  However this is not to say that each party will automatically receive 50 percent of the debt and the property.  Depending on the laws of the state, t is possible for the percentages to vary based upon other factors, by agreement it is even possible for one party to take a larger portion of the debt and have this offset with other property. 

Keep in mind that both assets and debts need to be considered if they were incurred during the marriage.  As well, the more the parties can agree upon the easier it will be to divide the property and to resolve all property issues.  If attorneys are involved the process is largely the same, but the property will likely have to be identified and values assigned and either litigated or agreed upon before the property can be divided.             

Another point to keep in mind is that just because one party desires that the other party sell or otherwise dispose of a certain item of property rather than keeping it doesn’t necessarily mean it will happen.  Since the total approach is a division of all property, if one spouse wants to retain a certain item of property, so long as the other spouse’s interest in the property can be satisfied, they will be allowed to keep it.

As with nearly all issues in a divorce, the more the parties can agree upon the better their case will go.

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