What is Division of Property?

Felicia Dye
Felicia Dye
Woman posing
Woman posing

Division of property is an issue that arises in divorce cases when there is a need to determine which assets or property will go to whom. In some divorce cases, the individuals can reach an agreement without intervention. In other cases, however, this issue is a major obstacle in finalizing the divorce and may ultimately have to be settled by the court. Prenuptial agreements are contracts that attempt to settle this issue before marriage, but these may sometimes be altered if divorce actually occurs.

When a married couple decides to get divorced, one of the primary issues that is likely to arise is property division. In a minority of cases, a couple has not been married long and therefore has not acquired anything, so they are divorced without a property division agreement. Rarely, however, is it considered just or legal for one spouse to be allowed to take everything.

When a court becomes involved, the manner in which division of property is handled often depends on the jurisdiction. For example, some jurisdictions are subject to community property rules. In a nutshell, this means that most items acquired during marriage belong equally to the couple, no matter who actually earned or purchased them. In some places, division of property is affected by the fault of one party. When a person files a divorce on one of the grounds legally recognized in that jurisdiction, such as adultery or mental cruelty, if the claim is successfully proved, she may be granted more property than she otherwise would have received.

Some people attempt to eliminate potential problems in advance by entering into prenuptial agreements. These contracts outline how property division will occur in the event of divorce. One thing that should be understood about prenuptial agreements is that there are often circumstances that allow modifications. If one spouse is bound to get significantly more than another, for example, it could be argued that the contract is unconscionable, meaning that it is so unfair that no court could find it just.

Even if a divorcing couple is willing and able to reach a division of property agreement on their own, it should be in writing. It is also generally advisable to have a family law attorney review it. This helps to ensure fairness for both parties. Both individuals do not have to receive equal assets or property for the agreement to be deemed fair. Having an attorney review the agreement can also help to ensure that it is binding, which prevents one partner from coming back at a later date to dispute the division.

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