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How is Property Divided in a Divorce Settlement?

How is Property Divided in a Divorce Settlement?

During a divorce settlement, there needs to be a clear agreement on everything, including kids, assets, liabilities, and properties. Because of this, arguments may arise from property settlements. This usually involves property that the couple bought before or during their marriage. But there are still a lot of intricacies to consider when it comes to settling properties, which are important to understand if you’re beginning the settlement process. Learning how property is divided in a divorce settlement can help you prepare for your new future.

What Are The Types of Property? 

Typically, there are two types of property that a judge will distribute during a divorce settlement. These are separate property and community or marital property. 

• Community or Marital Property

Community property refers to the properties acquired by using earnings during the marriage. 

As much as it includes all the acquisitions during the marriage, it also takes into account the debt and mortgages incurred. In effect, all debt and property incurred during the marriage are classified as community property. 

• Separate Property

On the other hand, separate property will include inheritance and gifts bequeathed to that certain spouse. This also includes personal injury awards and pension proceeds. 

In addition, a property your spouse purchased using his or her separate funds will be considered as separate property. All kinds of property purchased or acquired before the marriage is also considered as separate property. 

What Properties Can You Keep?

By understanding the two types of property, you can determine how property is divided in your divorce settlement. This helps you work with a lawyer to identify which properties you can keep. Determining which properties you can keep depends on your specific scenario. However, classifying your assets as separate or community property can help the judge and lawyers guide you through the divorce settlement. 

• Offshore Asset Protection Trust

Assets, including property, that you put into an offshore asset protection trust cannot be taken away during a divorce settlement. This trust is usually established under the laws of a different country and managed by a trustee. Given that it’s under the law of a foreign country, your home country won’t have any jurisdiction.

So, if you’re facing a divorce settlement, it’ll be very beneficial if you can put up an offshore asset protection trust so that you can keep your properties. If you still need more information on this, you can check out www.milehighestateplanning.com/offshore-asset-protection

• Property Bought Before The Marriage

Any kind of property that either party bought before the marriage is separate property. This, in itself, is proof that the intent of the property is just for one spouse. 

So, if you have any property from before the marriage, the law does not require you to include that in the settlement. As a result, it will remain under your ownership.


If you’ve been out of the workforce raising your children, you’ll appreciate this article: How to Prepare for Divorce If You are a Stay-at-Home Mom.


• Commingling and Transmutation

Properties that involve commingling and transmutation may be harder to provide evidence for, but you may still be able to keep them. 

To start, the law defines commingled properties as assets that you bought together using a joint bank account. When this happens, it may be more difficult to prove ownership. So, you need to keep separate accounts to have good records of property ownership. If you have separate accounts and can trace back who bought it, then this may be one of the properties that you can keep.

On the other hand, transmutation is a type of separate property that the law treats as marital property. To illustrate, this usually occurs when both spouses use the property. However, in reality, just one of the spouses bought and paid for the property. 

If you have records that you bought it, even if you use this property with your spouse, you can build a case to keep this property. So, when it comes to a divorce settlement, keep a good record of your purchases so you can prove this more easily. 

• Property You Contributed In

Lastly, if you have a property where you and your spouse made different contributions, this can also be a property that you can keep. With records on how much each spouse has invested, you can either split the property or buy out the other spouse.  

Conclusion

In a divorce settlement, you need to be knowledgeable about these kinds of properties to get what you feel you deserve. 

Now that you know the types of properties during a settlement and what kind of property you can keep, you’ll be able to strategize more efficiently with your lawyer. Remember to consult your divorce coach about the process of divorce and your recovery and your lawyer about the legal matters. 

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists and support strategies for you, and your future. Join our tribe and stay connected.

Who Moves Out in a divorce?

Who Moves Out of the Marital Home During Divorce, and When Do They Leave?

A question that comes up over and over again in my line of work as a divorce attorney is “When can I move out?” Or put differently, “When can I get my husband to leave?” Maybe the tension is so thick you can cut it with a knife. Maybe your children are experiencing screaming matches followed by long bouts of silence. You may find yourself unable to think straight—to figure out what your next steps should be and how to begin a new life. Or maybe, there are even elements of abuse in your relationship. I get it. You want peace. You want answers. And finding out who moves out of the marital home during divorce can seem like the first step toward solving these problems.

But the question, when can a spouse move out, is not a simple one to answer.

If you have children, the upside is that I recommend you do nothing until you’ve spoken with an attorney. Unless, of course, there’s an emergency and you need to remove yourself from the situation for your safety. You don’t want to affect your claim to custody or marital property.

It’s complicated. Divorce laws vary state to state, but for this article, I will reference the laws of New York.

What does the law say about who moves out of the marital home during divorce?

New York courts are often reluctant to award one spouse “exclusive use and occupancy of a home.” In nonlegal speak, that means ordering one spouse to move out of the marital home—something the courts can do no matter which spouse’s name is on the deed or lease. The courts are especially reluctant to do so without a finding of violence or “marital strife.” When the safety of household members or property isn’t at risk, the courts require that your spouse has a place to live before moving out. That’s not to say that the courts oppose removing one spouse from the marital home. They often prefer spouses separate. With that said, the decision isn’t made lightly. Judges have seen it all. They haven’t succumbed to the popular belief that it is simply better to separate you and your spouse. They understand that what is best for one family isn’t best for all.

What if your safety is at risk?

But what if you can’t wait for your lawyers and the courts to battle it out? There has always been the understanding that in any divorce, separation, or annulment, the courts can’t require a spouse to move out during court proceedings unless taking such a drastic action is necessary to protect the “safety of persons or property.” To take action, courts require evidence, anything from a testimony to something physical such as photos, medical or hospital records, and broken items.

If your spouse has committed a criminal act and needs to move out immediately, you can get a temporary order of protection (in other states these are often called restraining orders) from Criminal Court, Family Court, or Supreme Court. In fact, what many may not realize is that a person isn’t limited to a single court when looking to get an order of protection. You can get orders from more than one court for the same act. If even one of the orders of protection granted is a “full stay away,” then your spouse won’t be able to live in the same home as the people listed on the order.

So, what if it’s your sanity (not your safety) that’s at risk?

Anger, resentment—they can chip away at any remaining civility between partners. The courts understand that staying together under one roof can be damaging for reasons that have nothing to do with violence. But again, you’ll have to provide evidence for “marital strife” (and your spouse will need a new place to live) before you can expect the court to make anyone move out. Before you provide evidence, you’ll have to file a petition in Family Court or a motion in Supreme Court for an order of protection in which you request a full stay away. In Supreme Court, you can file a motion for exclusive use and occupancy without requesting an order of protection.

And what about the children?

When it comes to children, how can fighting parents living in the same home be in their best interest?

In 2017, at least one judge addressed this concern. In one of the first judicial decisions to address the impact divorcing couples remaining together in the marital home has on their children, Judge Richard A. Dollinger of Monroe County found “that existence of a hostile home environment, during a divorce, runs contrary to the best interest of children.”

What is the benefit of having a court order your spouse to move out?

The obvious benefit is that you’ll finally have peace of mind and remove yourself from an otherwise difficult living situation. Some parties , however, often see a court order for one spouse to move out as a tool to gain an edge in custody battles. When both parents live together with their children, neither parent can claim to be the primary residential parent. When one spouse moves out, the parent who spends more time with the children will be entitled to child support. If you and your spouse share the children’s time equally, then the parent who earns more may end up paying child support to the other parent.

How do finances affect the court’s decision about who moves out?

The elephant in the room is the question of whether you and your spouse can afford to live in two separate homes. It is crucial that everyone involved reduces the effect of divorce on your children. Make sure you always work toward separating in a fair and reasonable manner. It can be more expensive and emotionally damaging for children to be in the middle of their parents’ fighting. To be assigned their own attorneys or go through forensic evaluations and therapy.

Divorce is complicated enough already. As a parent, it’s your duty to pick the battles you choose to fight with your soon-to-be Ex wisely. Who moves out matters less than how and why they move out.

Randi L. Karmel has had her own Matrimonial and Family Law practice for 19 years and been an attorney for 25 years. She practices in the Criminal, Family, and Supreme Courts in New York. Randi L. Karmel, PLLC focuses on matrimonial and family law litigation and settlements. Her practice consists of preparing and negotiating agreements from prenuptial agreements to stipulations of settlement: divorce, abuse, neglect and orders of protection matters, custody, parenting time, child support, maintenance, equitable distribution, and separation. She is also certified to represent children. For more information on how Randi might assist you with your concerns, visit her website or call 212.755.0224.

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience. SAS offers women six FREE months of email coaching, action plans, checklists and support strategies for you, your family, and your future. “Divorce can be on your terms.“– SAS For Women”

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