Who Gets What in a Divorce

Figuring out who gets what in a divorce settlement is first determined by separating marital property from separate property, with marital assets being subject to division. The next factor to consider is the laws of the state that you live in, and whether it is an equitable distribution or community property state.

Below you will find answers from our financial expert Timothy McNamara about how assets are split when a couple divorces:

What am I entitled to if we get divorced?
Would my assets be considered separate property?
Who gets the pets when we get divorced?

What am I entitled to if we get divorced?

Connie Asks: I've been married for eight years and my husband's assets total approximately 1 million dollars. We have an 8 and 9 year old together and I stayed home with the kids for 3 years. He built the house we are living in and it is the only home my children know. On a different house we bought five years ago, he had only his name placed on the deed. He claims that all I am entitled to is 1/2 of anything which was acquired while we have been married. He is very controlling, and emotionally and physically abuses me. How will everything be split?

Timothy's Answer: You need a very good attorney and I strongly suggest you retain one if you have not already. You also need to make sure you are protected if you are experiencing any sort of physical abuse. Your safety is most important and there are people who can help you. I would also encourage you to work with a divorce financial planner such as a certified divorce financial analyst. This person can work with you to help you understand the financial decisions behind any proposed settlement, assist you with the division of the separately/marital property and make sure your best financial interests are being addressed.

Assets are divided in accordance with state law, so it is important to know whether you live in an equitable distribution or community property. In Equitable Distribution states, all marital earnings and assets will be divided between the parties in a fair and reasonable manner given each parties circumstances. A court would consider a range of factors when dividing property, which includes, but is not limited to the length of your marriage, amount of income, liabilities, health, whether you have children, etc. In a Community Property state, there is an absolute 50/50 of all property acquired during a marriage regardless of how the asset is titled. Property acquired prior to the marriage remains separate.

Within these two categories of states, property may be classified as either separate property or marital property. Marital property is property specifically accumulated by the couple during the marriage. Separate property is property that is not part of the marriage, but belongs exclusively to either the husband or the wife. Separate property is not subject to division in a divorce, it is retained by the spouse that owned it during the marriage.

Both the home you are currently living in and the second home you purchased in five years ago would be considered marital property. All marital property is subject to division. Regardless of what your husband says, state laws will dictate how the marital property is divided. Unless agreed upon otherwise, Community property states will divide the marital assets equally. In Equitable distribution states, all property, regardless of the legal title, will be divided equitably, but not necessarily equally.

Would my assets be considered separate property?

Question: If we were to get divorced, is he entitled to my assets that I brought from Australia?

Timothy's Answer: Regardless of where you were married, if you have lived in the U.S. for a number of years your property division will be dictated by where you live. The first issue you will need to resolve will be whether your assets are considered separate property or marital property. State law determines how property is classified.

The distinction between separate and marital property can be easily blurred and is a highly contentious subject. It is entirely possible that separate property can become commingled or transmuted into marital property over the course of a marriage. For an asset to be considered separate property, it must remain in the exclusive control and ownership of only one spouse. In situations where separate property has become combined with marital property, a judge could possibly include that property when dividing the assets in a divorce.

Providing that you are careful and never commingle your assets together, these assets will remain separate property. It is important to note that is takes very little for you to do to “taint” the assets and make them possible candidates for future division if faced with a divorce.

If the value of the property you have is substantial, we recommend you consider speaking with an attorney about domestic asset protection. Asset Protection will protect you from possible future litigation, creditors, spouse’s business partners etc. Too often many people who have assets spend their lifetime creating wealth but spend little or no time at all protecting their wealth. In the blink of an eye when you least expect it, something you do or are involved in could take it all away. In my practice we have been helping clients with this for years. Trading hope for certainty is a powerful way of letting you sleep well at night.

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