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Who makes property division decisions in a divorce?

| Apr 6, 2020 | Family Law |

One of the important tasks that occur during a divorce is separating property. During the marriage, you likely accumulated some valuable property together, which you must now figure out how to divide. There is some misunderstanding about how this process works, though. 

The American Bar Association explains that the court does not always have to be the one who divides your property. In fact, having the court create the property division plan is just one of the options you have. The other option may be more inviting, but for some couples, it may be more difficult to make happen. 

The other option 

You and your spouse can bypass having the court divide your property. You can do this through negotiations or other alternative dispute resolution methods. Obviously, making the decisions yourself will only work if you can find common ground and reach an agreement. 

If your divorce is hostile with very little possibility of you and your spouse working together, then you may have no choice but to leave property division up to the court. However, making the decisions yourself provides you with a lot of flexibility because you do not have to follow strict guidelines like the court does. 

The court 

If the court has to make the decisions for you, it must follow the law in doing so. The court will have to assess all your assets and determine if they are marital or separate property. Marital property is generally anything obtained during the marriage. Separate property is what you brought into the marriage. 

The court also makes decisions based on equitable distribution laws. This means a fair division of property, but it does not guarantee an even split of property. The court can use many factors when making decisions on who gets which asset. The final decisions may not be what you or your former spouse want, but the court’s final ruling is legally binding. 

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