How you fare in a divorce will likely be determined in part by where you live. There are basically two types of divorce laws when it comes to distribution of marital property -- community property and equitable distribution. Marital property includes the assets determined to be owned by both spouses. These usually include things like the family home, cars, joint bank accounts, jewelry, furniture, artwork and investments.
Equitable Distribution Laws
Most states (41) as well as Washington, D.C. have equitable distribution laws. Many people think that "equitable" means "equal." However, it generally doesn't work out that way. Equitable distribution means that if the divorce goes to court and a judge determines the distribution of marital assets, they are to be divided "fairly."
Judges have the discretion to determine what's fair. However, they are supposed to consider each person's income, future earning potential and personal assets. They also look at each person's financial needs. Further, they consider how much both people contributed of their own money to acquire the marital assets at stake.
Community Property Laws
The other nine states, which include California, Nevada and Texas, are considered community property states. In these states, all assets that a couple acquires during their marriage are considered to be owned jointly and therefore are divided 50/50 in a divorce. There are exceptions to this equal division for things like inheritances or other gifts received by a spouse.
Generally, when one spouse earns considerably more than the other and the assets accumulated during the marriage were paid for with his or her income, that spouse fares better in an equitable distribution state than a community property state. However, people can protect themselves going into a marriage against a 50/50 split that would not be to their benefit.
How a Prenup Can Protect You in Any State
You and your spouse can draw up a prenuptial agreement going into the marriage or a post-nuptial agreement later. Generally, a prenup is preferable, however. A solid prenup drawn up with the guidance of an experienced family law attorney can detail things like the division of assets as well as alimony in the event of a divorce.
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