April 23, 2014

What am I entitled to in a divorce?

In a divorce, the judge is charged with dividing marital property in a fair and equitable way. What’s considered fair and equitable depends on the unique circumstances of each party, so there are a wide variety of possible outcomes.

During a divorce the judge has almost unlimited authority in dividing assets and liabilities. There are generally two types of property that will be considered: separate property – or property acquired before or after the marriage (or by gift or inheritance to one person during marriage) – and community property, which was acquired during the marriage.

Separate property many times will be awarded to the person who originally acquired it, while community property will be distributed in “a fair and equitable” way. Marriage alone does not determine whether property is community or separate owned. If a couple lived together before the marriage, that time could be considered part of the community period.

All property may, or may not, be divided equally between the parties depending on circumstances. One person may be given a larger share of community property, and at times even the separate property of the other spouse. This is especially common when one spouse has a significantly smaller potential income than the other spouse.

In addition, property can also be partly separate and partly community, such as a retirement account that was contributed to before and during the marriage.

Child and spousal support (also known as alimony) agreements will also be determined during the divorce. Though spousal support is generally less common than child support, both forms of support are often used to balance the financial positions of the parties after divorce.

Spousal support is usually not permanent, but is ordered for a period of years depending in part on the length of the marriage. The period and amount may also be affected by the division of assets as well as medical conditions which interfere with the receiving spouse’s ability to earn income.

Failure to pay ordered spousal and child support can result in legal action against the responsible party. In some cases the court may mandate wage garnishment in order to collect payment.