Property Division Basics
Property rules vary from state to state. However, all states follow one of two approaches to dividing property—equitable division or community property.
Most states have enacted equitable division laws that govern property division in a divorce. In an equitable division state, you and your spouse will be awarded a fair share of marital property, but not necessarily an equal one. This means one spouse could walk away from the divorce with the majority of assets and minority of debts. In equitable division states, a judge will try to equalize each spouse’s financial situation based on a number of factors. The good news for some couples is that separate property isn’t subject to division in a divorce.
A few states, including Idaho, take a community property approach. Community property states include: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Under this approach, a judge will divide marital property in half. Each spouse takes an equal share of marital assets and debts except under extenuating circumstances. Because separate property isn’t subject to division in a community property state, an accurate characterization of your property is critical.
Characterizing Marital and Separate Property
Separate property includes property acquired before a couple’s marriage and gifts or an inheritance. A judge won’t divide your separate property in a divorce. Marital property is anything acquired during your marriage, including each spouse’s income, the marital home or vehicles. Nevertheless, separate property can quickly become marital property through commingling. One example of commingling is using marital funds to remodel and maintain a house you owned prior to your marriage. Although the house was originally your separate property, it is now subject to division where each spouse is awarded a percentage of the value because it was mixed or commingled with marital assets.
Once you’ve established which items are marital and which items belong separately to your or your spouse, you’ll need to assign a value to each piece of property. If you’re able to reach an agreement with your spouse, it’s the simplest way to value your marital estate.
In some situations, it may be worth hiring an expert to appraise high value items or determine how much a family business is worth. Specifically, a skilled real estate agent or an appraiser can perform an official appraisal of your marital home or any rental properties you and your spouse own. Forensic accountants can also be helpful when determining the value of business interests, royalties, or if you suspect that your spouse may be hiding assets. Finally, a business valuation expert is essential in any case where one or both spouses owns a business.
Preparing Your Divorce for Trial
Each spouse must submit preliminary financial disclosures early on in a divorce. Your disclosures will include a list of all income sources, assets, debts, and monthly expenses including rent, utilities, car payments, loan payments, credit card bills, medical expenses, and personal care costs. Your disclosures should be as complete as possible and you’re under a legal obligation to update them if any information changes during your divorce.
If a couple isn’t able to settle their case, a judge may order a non-binding mediation session. When mediation doesn’t succeed, you’ll need to prepare your case for trial. In the interim you and your spouse probably exchanged financial records, bank account information, and any other information relevant to resolving your divorce. You should expect to testify about your debts and assets at trial. Also, any experts you used in your case should also be prepared to testify.
How Will a Judge Divide Property at Trial?
In Idaho, a judge will presume that an equal division of property is appropriate unless other circumstances justify an unequal award. Specifically, a judge will evaluate the following factors before splitting property in a divorce:
- duration of the marriage
- prenuptial or postnuptial agreements dividing property
- each spouse’s age, health, occupation, employment history, income and liabilities
- each spouse’s needs
- any alimony award
- each spouse’s present and potential earning capacity
- each spouse’s retirement benefits including social security, civil service, military or other pensions, and
- any other relevant factors.
In certain situations a judge will deviate from a an equal (or close to equal) split. For example, if one spouse has to provide full-time care for the couple’s disabled child, that spouse may be entitled to a larger share of the marital estate to cover living expenses. Ultimately, a judge will attempt to divide the couple’s property in the way that is fairest to both spouses. In a community property state this usually means an equal split, but some circumstances may justify an unequal award.