One of most contentious issues divorcing couples face is how to divide their marital property and assign each person a portion of the marital debt. In Connecticut, the court is usually willing to accept a couple’s fair and reasonable property settlement, but if you can’t agree, a judge will decide, and you may not like the result.
Marital Property and Separate Property
The court in Connecticut divides a couple’s marital property and debt using a concept called equitable distribution. This means that when a couple divorces, a judge will distribute assets in a way that is fair, but not always equal.
Before the court can issue a property division order, a judge will first determine if the assets qualify as marital property or separate property. But, in contrast with many other states, Connecticut law allows a judge to award any or all of the couple’s marital assets (or marital estate) to either spouse—no matter whose name is on the title. To put it simply, even if one spouse owned and titled a home in his or her name before the marriage, a judge can divide it fairly between the spouses.
So, what is separate property? In most states, if a spouse owned property before the marriage and kept it isolated during the marriage, a judge would characterize this as separate property and award it to the owner spouse.
There are occasions when separate property can meld into marital property and that typically happens when the couple commingles—or combines—their marital assets during the marriage. But in Connecticut, spouses will find it much more difficult to prove that an asset is separate property, and even one spouse's gifts and inheritances are subject to the rules of a fair and reasonable property settlement.
Even though most of a couple’s marital estate is fair game for division, a judge does have the ability to award one spouse his or her separate property, so don’t lose hope. If your grandmother left you a sizable inheritance and you kept it out of your marital bank accounts, it’s possible you will receive the full value in the divorce.
Can We Make Our Own Settlement Agreement?
Contrary to popular belief, most divorce cases will settle before ending up in a long court battle. Couples can save a significant amount of time and money if they can agree on the property division without a judge’s interference. Although courts try to be as fair as possible, if you have great concern about your property division, it may be in your best interest to try to work something out with your spouse.
Some couples find mediation very helpful, which is a process where both couples will meet with a qualified, neutral-third person who can help them calmly discuss their situation. During the meeting, both spouses will have an opportunity to explain their preference for the property division and hopefully end the meeting with a settlement agreement.
A big part of property division is confirming how much an asset or property item is worth. When spouses don’t know, or can’t agree on a value, they can search for help.
If an item is an antique or collectible, it will likely require an expert assessment— in this case, the couple can pay for a professional appraisal. Any expert must use a fair market analysis to determine the value of the item, so if you’re concerned that this analysis won’t reflect the item’s sentimental value, you may want to consider assigning a value on your own.
If couples want to assign their own value, they can utilize the wealth of online resources available in today’s technological world. Sites such as Craigslist.com or Ebay.com may be a great starting point if the item is common or popular.
How Will a Judge Divide Our Property?
After you've agreed on the value of your property, you'll need to divide your assets. If couples can’t agree, a judge will divide marital property in a fair and reasonable manner. There is no specific formula that a judge will follow, so he or she has great discretion when deciding who will take home the living room furniture.
Some of the factors judges in Connecticut may consider include:
- the length of the marriage
- each spouse’s age and health, economic circumstances, occupation, skills, amount and sources of income, employability, estate, liabilities, and needs
- each spouse’s income or future earning potential
- the value of each spouse’s separate property and contribution to the marital assets, and
- the reason for the breakdown of the marriage.
How Will a Judge Divide Our Debt?
In addition to dividing property, couples also need to assign the marital debt. Some debt, such as a student loan, may be categorized as a separate debt. A judge will assign other debts, like joint credit cards or auto loans, to both spouses, unless they agree to a different arrangement.
Even if a judge assigns one spouse the joint credit card, couples need to understand that a court order can’t change the legal agreement they have with a lender. So, if both of you were authorized to use the credit card, the lender or credit card company will usually have the right to go after either spouse for repayment of the debt.
Make sure your marital settlement agreement and/or divorce judgment contains a provision that allows you to get reimbursed if your ex-spouse fails to pay credit cards or other assigned debts and the lender comes after you for payment.
What About my Retirement or Pension Account?
In Connecticut, a pension or retirement account is marital property if the account is “vested.” Vested means the earning spouse has the right to withdraw or take the account at the time of the divorce. If the account is unvested, the earning spouse will keep it as separate property, so it won’t be subject to the rules of equitable distribution. It’s important to understand that if a judge determines the account is separate, he or she may still offset the value of that account with other marital assets for the other spouse to ensure the property division remains fair and reasonable.