A Family Court Judge Divides Property in a Divorce in a Three-step Process.
1. The Judge Must Decide Which Assets are Marital Property.
I order to divide property in a divorce the judge must first exclude the following three categories of property from the marital estate:
(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 at any time; and
(3) Property or an interest in property which has been transferred to one of the parties by gift from a third party at any time.
These categories of property belong to the individual and NOT the marriage and therefore are not considered when the judge divides the property.
Any property that does not fall into the above categories AND has been acquired during the marriage by either party is generally considered part of the marital estate even if it’s in only the name of one of the parties. For instance, income earned during the marriage would be marital property. Likewise, real estate acquired during the marriage belongs to the marriage.
As a general and almost absolute rule, anything that is NOT inherited by or gifted to one party and is acquired DURING the marriage is part of the marital estate. However, even property that would be excluded according to the criteria listed above may be determined by the court to be “gifted” to the marriage. If it is considered gifted to the marriage, then the judge will divide it with the rest of the marital property.
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. A house that belonged to one party before marriage but is then placed into the names of both parties is a gift to the marital estate. Any property considered to be gifted to the marital estate may then be considered as marital when the Family Court divides the property.
2. The Judge Must Determine in What Proportion to Divide the Marital Property
Once the trial judge makes the determination of which of the parties’ assets are marital properties, he or she must divide the property. Usually, the property is divided equally. However, the court may consider certain factors to determine the proportion of the marital estate each party should be awarded and may choose not to divide the property equally.
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.
3. Finally, the Court Decides How to Distribute the Property
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. The house then must be sold so that both parties may get their share.
However, 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 this would be in the best interests of the children and fair to both parties. This could result in the delay of a party receiving their share of the marital property.
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 situation. Contact us to schedule your consultation.