Divorce
In a divorce, or marriage dissolution, proceeding, the marriage of the parties is terminated and other related issues, including child custody, child support and visitation, spousal support (alimony), and property and debt division, are decided. Divorce can in some cases be a very contentious, acrimonious process, but in others the parties are able to (either completely voluntarily or with the aid of their lawyers and/or a neutral mediator) reach mutually agreeable decisions.
In the past, courts would not grant couples a divorce unless one of the spouses could establish what the law considered sufficient grounds to terminate the marriage. The most common traditional grounds were cruelty, desertion, and adultery, but divorce could also be based on nonsupport or neglect, alcoholism, drug addiction, insanity, or criminal conviction. Today, however, most divorces are considered "no-fault," that is, the parties can terminate their marriages on the grounds of incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The concept of fault may have survived in some aspects of divorce, however. In some states, it may still be relevant in determining issues of custody and visitation, child support, spousal maintenance, or property distribution.
Property distribution may be hotly contested in a divorce action. Commonly distributed property includes real estate, personal property, cash, bank accounts, stocks, bonds, ownership interests in family businesses, and retirement benefits. There are two main methods of property distribution, based on the divorce statutes in the states in which the divorce occurs, which can be categorized as either equitable-distribution or community property states. The majority of the states are equitable-distribution states.
In equitable-distribution states, courts divide a divorcing couple's assets in a fair and equitable manner based on the circumstances in the particular case. Some states consider the fault of one party in dividing the property, but others specifically exclude e.g. marital misconduct from consideration when deciding property-distribution issues. The court will equitably divide all marital property, which generally consists of all property acquired during the couple's marriage. Although non-marital property, including property acquired before marriage, gifts to one spouse, and property inherited by one spouse, is usually not divided between the spouses, the amount of non-marital assets held by each party may affect the court's distribution of marital property.
Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community-property states. In these states, each of the spouses has a one-half interest in all of the property acquired during the marriage. It is presumed that all property acquired by either spouse or both of them during the marriage belongs to the community, unless proven otherwise. As in equitable-distribution states, exceptions may be made for gifts, inheritances, and the property each party brought to the marriage.
When property is evenly or equitably divided, each asset is not necessarily split between the parties. Rather, each is given his or her fair share of the total package. One spouse may actually receive more property than the other, but make up the difference through cash payments. Or, in some cases, the actual distribution may take place at a future date. This often occurs when there is significant equity in the family home, but a sale is not in order because the custodial parent wishes to live in the home until all of the children are raised. In such cases, the equity is determined at the time of divorce or separation, and the shares are then calculated, but the money does not change hands until such time as the house is actually sold. One alternative to this delayed-payment scheme is to obtain a home equity loan, so that the spouse who does not remain in the home can tap into what may be the parties' largest asset.
Recent developments in property-distribution law include the recognition of a homemaker spouse's contribution to the increase in value of a family business, and the wage-earner spouse's contribution to the other spouse's education and professional degree. Courts are now awarding greater shares of family businesses to wives who managed the household so their husbands could tend to their business, and dividing the value of a professional degree or practice, such as law or medicine, between both spouses if one supported the other financially while the necessary education and experience were obtained.
Property and debt distribution in a divorce can be a difficult process, and the advice of an experienced family law lawyer can help to expedite the process.
Checklist: Post-Divorce Actions to Take
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