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How Is Property Divided in a Divorce Settlement?

There is much more to a divorce than just deciding who gets custody of the children and how much child support the other spouse must pay.  Distribution of property can be a complex and contentious aspect of divorce law that often requires the advice of a division of assets attorney.  Divorce laws vary by state, and depending on your location, a division of assets attorney can help you understand your state’s divorce laws.  A few states are community property states where divorce law mandates that all property is either equally owned or equally divided in a divorce, or it is owned by one party and retained by that party after the divorce.  The rest are equitable distribution states, in which divorce law states that all assets are divided in a fair, but not necessarily equal, way in a divorce.  A division of assets attorney can help insure that equity.

The good news is that in many divorces, even if there is a great deal of animosity, distribution of property can go rather smoothly, even without the aid of a division of assets divorce attorney. 

Property Divorce Law
There are some elements of distribution of property in divorce law that are common throughout the country, although they may have some slight differences among the states, which a division of assets attorney can help you discern.  Judges are allowed a great deal of leeway in determining distribution of property in community property states.  In fact, the distribution of property does not have to be 50-50 or even 80-20.  If your case is complex or if you have other questions about the distribution of property, you may need to seek the advice of a division of assets divorce attorney.  A division of assets attorney knows divorce law and can negotiate to ensure that distribution of property decisions are being made in your favor. A number of factors that influence distribution of property decisions, including:

  • Marital or community property is usually defined in divorce law as those monies, wages, income, and property acquired during the marriage.  This includes property acquired during the marriage with marital funds, even though it might be under the name of only one of the spouses.  In community property states, a division of assets attorney can help you determine the distribution of property fairly and in accordance with divorce laws .
  • Non-Marital property is that property belonging to one party before the marriage and was kept separate by that partner throughout the marriage.  It can also include gifts or an inheritance that came to one partner only.  If one partner has a great deal more non-marital property than the other does, divorce law dictates that he may be awarded less in the distribution of property settlement.  Since these are fertile ground for settlement disputes, a mediator or division of assets attorney may aid in these determinations.

Who earned the marital property is another consideration.  The one with the least earning power is often awarded more property since the earner can support themselves independently.  On the other hand, if there is a family business, divorce law often allows it to be awarded to the spouse who started it or primarily ran it.  The other partner can be awarded the house or other assets under divorce law, and with the advice of a division of assets attorney, to keep the distribution of property equitable. 

Other factors like health, age, services as a homemaker that may have kept a spouse from advancing in a career and more are all taken into consideration in distribution of property decisions.  There are many elements that only a division of assets attorney can discover and negotiate for you.

Reaching a Settlement
Often partners can reach an equitable distribution of property on their own.  Nevertheless, if they cannot, they may need to call on a division of assets attorney.  He can guide them through the process, help them understand divorce law, and provide an unbiased look at the value of their property.  Division of assets attorneys guide the parties using “the shadow of the law.”  That means that they have been involved in so many distribution of property negotiations, they can make a good assumption of how a judge would decide a case under divorce law.  A division of assets attorney can help you decide whether there is sufficient reason to take your distribution of property case to court.  The costs are extensive, but a division of assets attorney who is an experienced negotiator can, in some cases, save you enough money to cover court costs. 

Not all distribution of property settlements must be determined in court.  In some cases, a division of assets attorney can advise the parties sufficiently about divorce law so that, if there are no unsolved disputes, the parties can reach an agreement.  As long as the agreement is filed with the court and is prepared by the division of assets attorney, it is binding.

Appealing a Distribution of Property Settlement
The chances of appealing or modifying a distribution of property agreement are slim.  Most courts and judges do not want to see a case litigated again.  However, a process under divorce law by which a spouse in a distribution of property settlement can seek to have his agreement modified or adjusted.  It is called a motion to reconsider or a motion to vacate the judgment.  However, the time in which to file such a motion is usually 30 days.

Only in very rare circumstances will a judge consider such a motion concerning a distribution of property settlement outside that period.  It can be done if there is evidence that the court made a mistake in the original distribution of property or in applying divorce law.  If there is evidence that one of the partners provided fraudulent information about his or her assets to the other, divorce law allows the distribution of property settlement to be challenged. 

Finally, if it can be proven that one of the parties signed the distribution of property agreement under extreme duress, a judge may agree to reconsider the case.  In any of those situations, a division of assets attorney can help you file your motion according to divorce law.  The time limit for filing may also be extended to a year or more, and a division of assets divorce attorney may be able to get you a hearing while your own efforts may not.
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