The 3 Things a Judge Must Do to Divide Property in a Divorce

How Does the Rhode Island Family Court Divide Property During a Divorce?

A Family Court  judge in Rhode Island determines how property is distributed in a divorce in a three step process.

FIRST, the judge must identify which assets are marital property.  In doing so, the judge must exclude the following three categories of property:

(1)         Property held by a party prior to the marriage ;

(2)         Property or an interest in property which has been transferred to one of the parties by inheritance before, during, or after the term of the marriage ; and

(3)          Property or an interest in property which has been transferred to one of the parties by gift from a third party before, during, or after the term of the marriage.

Property that does not fall into the above property AND has been acquired during the marriage is generally considered part of the marital estate. However, property that would qualify as excluded according to the above criteria may be deemed by the court to be “gifted” to the marriage and therefore NOT excluded.  For instance, if a party inherits money but then puts it into an account with marital money, the inherited money may no longer be considered separate from the marital estate.

SECOND, once the trial judge makes the determination of which of the parties’ assets are marital properties, he or she must consider certain factors to determine the proportion of the marital estate each party should be awarded.  If the judge finds these factors to be of no consequence, the property that is deemed to be marital property is usually divided equally between the parties.   Among the factors the trial justice must consider are the length of the marriage, the contributions of the parties to the marital estate and the conduct of the parties during the marriage. For instance, a court may find that a party committed wrongdoing during the marriage, such as infidelity, that would justify awarding that party a smaller percentage.

THIRD, the court must determine a way to distribute the marital estate in the proportion the court deemed appropriate.   A judge could rule that one party may keep the family home and the other may get a retirement fund of equal value.  Other times there may not be enough liquid assets to give to one party to balance off the value of a house, for instance, and the house must be sold so that both parties may get their share.  When there are minor children involved, the sale of a marital home to distribute the assets may be deferred until the children reach adulthood if the court determines that such a deferment would be fair and in the best interests of the children.

Please remember that the above is intended to provide general guidance, not advice.  There are other factors that help determine which assets and debts are part of the marital estate and it is important to meet with an experienced attorney to learn how the laws apply to your particular situation.  Please feel free to contact us to schedule your consultation.

Click to Text Carl P. DeLuca, Esq

Call or text 401 384-0355

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