• Choose a category
• All
• Classic-Fiction

In states that don't start with a presumption of equal division, state law usually says that the division should be "equitable" and "just" The judge will use the factors described below to reach a result that meets that standard.

Factors a Court Considers in Dividing Property

The judge in your divorce case, if you and your spouse can't divide your property yourself, will consider a number of factors to determine a fair division of property. Each state has its own set of factors but also gives judges the freedom to consider anything that seems relevant to your situation.

If both you and your spouse own roughly equal assets and have roughly equal earning capacity, it's easy. But if one of you would come away from the marriage much less well off than the other if you each simply took your own assets, then the judge tries to even things out. The length of the marriage is a major factor in how equal the judge will want things to be-the longer the marriage, the stronger the argument is for an equal division and for a division that will leave the lower-earning spouse as close to the marital standard of living as possible. By contrast, in a short marriage, if one spouse made a much greater contribution to accumulating marital wealth than the other, the higher-earning spouse will probably get a greater share.

Decisions about dividing property are similar to decisions about spousal support, because they relate to the same issue: how assets should be distributed so that both spouses can live as comfortably as possible after divorce. Both spouses' age and state of health tell the judge something about their needs, as do their job histories, need for retraining, and likely earning capacity.

The judge will also look at whether either spouse has significant separate assets. If you have a family trust that means you'll be set for life, or are expecting a large inheritance or the vesting of significant stock options, the judge will likely consider those holdings.

The judge will consider whether there's been any wrongdoing, such as hiding assets or squandering marital property. If your spouse squanders your joint money on gambling, sells a jointly owned asset for much less than it's worth, or buys expensive items against your wishes, a court could use the final property settlement to even things up. (The legal terms for throwing away money like this are "waste" or "dissipation.") Just making bad decisions or poor investments doesn't usually count as waste; there has to be some wrongdoing involved.

Other factors the judge could consider include:

• whether there are children, how much time each parent will be spending with them, whether the children have special needs, and whether their ages mean that staying in the family home is important for them

• contributions that either spouse made to the other's training, education, or career advancement

• whether either spouse gave up a career to stay home with the kids

• the potential for marital property to grow in value

• how easy it is to distribute an asset (liquidity), and its present value

• how property is titled (in a few states, the court won't order one party to transfer title to the other, but will require that money or other untitled property be transferred instead)

• potential tax consequences of various distribution scenarios

• separate debts that each spouse is obliged to pay, and

• fault, in some circumstances (see Chapter 5).

When you try to negotiate a settlement with your spouse, review all these factors and consider how they might tip the balance in your situation. It may serve as a reality check if you aren't able to agree. And don't forget how much you could spend in time or lawyers' fees arguing about each issue. Better to compromise some and come away with an agreement that feels fair to you than risk having the judge focus on factors that aren't in your favor.

What to Do With the House

In many-if not most divorces, the family home is the couple's largest asset. It can also be a very emotional item. Very likely, you and your spouse decided