Relevant Factors to Determine the Division of Property
Not too long ago, there was a major shift in thinking with respect to what actually constitutes a relevant factor. "Marital fault" is no longer considered to be a relevant factor. Therefore, such issues as adultery, cruelty, desertion, to name a few, no longer have any influence on the actual division of assets. It should be noted, however, that most states, including those which do not allow for marital fault, economic misconduct remains a qualifying factor. Economic misconduct would be characterized by such actions as emptying joint bank accounts into a solitary account, attempting to hide or deliberately de-value martial property, intentionally incurring large amounts of debt in anticipation of divorce, and a host of other types of spite-driven and/or vengeful acts.
For spouses who may have sacrificed career achievements or goals to give primary care to children, the court does consider "homemaking" to be a relevant factor. In addition, any career and/or economic sacrifices that one spouse made to put the other through school is also now considered to be a relevant factor. Generally speaking, the existing trend in today’s courts are to allow significant weight for relevant factors which resulted in any economic contribution to the marriage. In this regard, there are two classifications of these contributions, tangible (wages, salary, etc.) and intangible (homemaking, child care, career sacrifice, etc.).
Other significant relevant factors to be considered for property division would be the length of the marriage, the age and health of the spouses, the value of each spouse’s property brought into the marriage (known as "separate property"), any gain or loss in value of any separate property during the marriage period, any liquidation or depletion of separate property value for marriage purposes, the occupation and vocational skills of each spouse, the income and liabilities of each spouse, the present earning capacity of each spouse as well as that in the future, the ability of each spouse to acquire future income and capital assets, the time required for a spouse to obtain the necessary education to find suitable employment, the amount of alimony that may be awarded to a spouse, the future child care and support burdens a spouse will incur, the tax consequences of the impending property division, the standard of living enjoyed during the marriage period, and the economic needs of each spouse just to name a few.
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COMMUNITY PROPERTY VERSUS EQUITABLE DISTRIBUTION -- There are two basic ways to handle divorce property division: Community Property: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin and Puerto Rico are community property states. This means that all marital property is typically defined as community property or separate property. When divorcing, community property is typically divided evenly, and each spouse keeps his or her separate property. Equitable Distribution: All other states follow equitable distribution. This means that a judge decides what is equitable, or fair, rather than simply splitting the property in two. In practice, this may mean that two-thirds of the property goes to the higher earning spouse, with the other spouse getting one-third.
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