How Courts Divide Property In Divorce Proceedings

Posted: September 30, 2014 By Krigel & Krigel

In a previous post we discussed the differences between marital property and non-marital property. In this post we will explain in more detail how a court will divide marital property when the two parties are unable to make the division on their own.

Among many things, the law considers marriage an economic partnership. Thus, property division should sever economic ties to address post-divorce economic circumstances. The court will primarily look at these four considerations, but other factors may come into play depending each state’s laws:

Economic circumstances and contribution

First, the court will consider the financial position of each party, including earnings ability. The court will also look at what each party contributed to the partnership, both in terms of dollars, as well as input and labor into the home. Non-marital property contribution will also be a factor both in terms of the status of a party before the marriage, and his or her position after.

Fault of a party

In many states, courts do not consider fault when dividing marital property. Missouri is known as a “modified no-fault” divorce state, in that the court may consider fault – or misconduct – when dividing marital property.  Fault or misconduct can affect the court’s division of marital property, as well as the result, when it comes to maintenance, child custody, and attorneys’ fees.

Custody of children

Some states, including Missouri, have statutes requiring courts to consider giving the marital home to a parent with custody of children who are minors. That spouse may not be awarded all of the equity of the home. If it is not sufficient for the other party, the spouse that did not receive the marital home could possibly be issued a lien on the property.

Property that can’t be divided

If property can’t be divided, or is too commingled between the parties, the court may require this particular property to be sold. Once the property has been sold, the court will allocate a percentage of sales to each spouse in an equitable manner. As discussed in a previous post, “equitable” does not mean that a division will necessarily result in a 50/50 distribution. Instead, the court will divide the property in a way that it believes is the most fair, depending on the above-stated factors and the facts and circumstances presented to the court.

As you can see, the outcome of your case is entirely dependent on your particular circumstances. Therefore, it is important that you discuss these issues with a family law attorney who can help guide you through this legal process.


Image: Thinkstock/zimmytws
*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.

 

 

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