Division of Assets

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How Are Marital Assets Divided?


The division of marital assets is a key element of any divorce case. Separate property (see the following section) must be confirmed to its owner. Marital assets, on the other hand, must be divided either by agreement (see previous section on property settlement agreements) or by the court following a trial.

The law regarding the division of marital property is far too complex to address comprehensively in this website. Basically, the law provides that marital assets must be divided equitably, but not necessarily equally, unless the parties agree otherwise. The court, therefore, is not required to divide each asset down the middle, as long as all parties receive a substantially equal portion of the total equity in the marital assets. Separate property is excluded from the division of assets. Each party must be awarded his or her separate assets. However, the party claiming that an asset is separate property has the burden of proving that separate ownership. There is a presumption that all property acquired during the marriage is community property. Therefore, unless there is sufficient evidence to the contrary, the court will treat all property acquired during marriage is community property. For this reason, it is essential that you discussed with your lawyer how each asset was acquired and what evidence there is to prove the ownership.

The marital debts also are divided by the court. Neither party, however, is responsible for the premarital or separate debts of the other.
In most cases, debts incurred for community purposes are divided between the parties, even if the debt is in the name of only one party. There are exceptions to this rule, but generally, marital debts must be divided.

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