Divorce proceedings become exceedingly complicated when there isn’t a prenuptial agreement outlining who owns which. It could get messy with back-and-forth discussions that will add to the pressure exerted on you, your soon-to-be ex-partner, and your children.
Even though you may have merged your assets together, it’s still possible to recover your possessions and move on with your life. With this, here’s a guide to help you navigate around the legal implications of divorce and secure your right over some of the assets you shared.
1. Understand the difference between marital and non-marital assets
Wherever you are in the world, divorce proceedings require an understanding of what marital and non-marital assets are.
| Aspect | Marital Assets | Non-Marital Assets |
|---|---|---|
| Definition | Assets acquired during the marriage by either spouse | Assets owned by one spouse before the marriage or acquired individually |
| Ownership | Joint ownership by both spouses | Individual ownership by one spouse |
| Examples | Family home, joint bank accounts, income earned during marriage, retirement benefits accumulated during marriage | Inheritance received by one spouse, gifts received individually, personal property owned before marriage |
| Division in Divorce | Typically subject to equitable distribution | Generally not subject to division, remains with the original owner |
| Contributions from Both Spouses | Considered, even if only one spouse’s name is on the title | Not considered, even if the other spouse contributed to the asset |
| Income from Assets | Income generated from marital assets is considered marital property | Income generated from non-marital assets remains non-marital |
| Changes in Classification | Can become non-marital if converted or commingled with non-marital assets | Can become marital if commingled with marital assets (e.g., depositing inheritance into a joint account) |
Simply put, marital assets such as real estate are brought together by a married couple. Also known as conjugal property, marital assets establish the mutual ownership of both partners, implying that they both have equal rights to such assets.
On the other hand, non-marital assets are those purchased by either spouse before or during marriage. Understanding this distinction should help you focus on the properties you are likely to reclaim as your divorce progresses.
2. Take stock of what you own and put everything on paper
After you have defined what marital and non-marital properties exist between you and the other party, you should do an inventory of all the assets listed under your name. Keep transaction records such as dated receipts and even photographs that will help prove that you are the legal owner of these items.
- Document Everything: List all assets under your name. Keep transaction records such as dated receipts and photographs to prove ownership. This is especially important for high-value items.
- Gather Financial Documents: Collect documents on liabilities such as car loans and personal loans, bank statements, and copies of your joint tax returns. Having these documents organized will help your attorney build a strong case.
- Legal Considerations: Share all these details with your divorce attorney. According to the Uniform Marriage and Divorce Act (UMDA), courts consider both marital and non-marital property in equitable distribution.
Understand Your Legal Rights and Obligations
Familiarize yourself with the legal framework governing divorce in your state:
- Equitable Distribution: In most states, marital property is divided equitably, not necessarily equally. The court considers factors such as the length of the marriage, contributions of each spouse, and economic circumstances (Equitable Distribution Law).
- Community Property States: In community property states like California, Texas, and Arizona, all marital property is divided 50/50 (Community Property Law).
- Spousal Support: Also known as alimony, spousal support may be awarded based on factors such as the length of the marriage, the standard of living during the marriage, and the recipient’s need for support (Alimony Law).
Protect Your Financial Interests
- Close Joint Accounts: To prevent your spouse from depleting joint accounts, close or separate these accounts and open individual ones.
- Monitor Credit: Keep an eye on your credit report to ensure there are no unexpected charges or loans taken out in your name.
- Update Beneficiaries: Change the beneficiaries on your insurance policies, retirement accounts, and other financial instruments to reflect your new circumstances.
Custody and Child Support Considerations
If you have children, their well-being should be a top priority:
- Custody Arrangements: Understand the different types of custody (legal and physical) and work towards an arrangement that serves the best interest of the child. Courts usually prefer joint custody to ensure both parents are involved (Child Custody Law).
- Child Support: Ensure that child support is calculated fairly. Each state has guidelines to determine the amount based on parents’ incomes and needs of the child (Child Support Law).
Prepare for the Emotional Impact
Divorce can be emotionally taxing. Here are some ways to cope:
- Seek Support: Surround yourself with supportive friends and family. Consider joining a support group or seeing a therapist.
- Stay Healthy: Maintain a healthy lifestyle by eating well, exercising, and getting enough sleep.
- Focus on the Future: While it’s natural to feel sad or angry, try to focus on building a positive future for yourself.
Practical Steps to Take
- Consult a Divorce Attorney: An experienced attorney can provide valuable guidance and ensure your rights are protected.
- Mediation and Alternative Dispute Resolution: Consider mediation to resolve disputes amicably and avoid the stress and expense of court battles.
- Organize Important Documents: Keep a dedicated file for all divorce-related documents, including financial records, correspondence, and court papers.
3. Find a qualified divorce attorney to walk you through the steps
The complexity of divorce law requires expert knowledge and skills. It’s not just a matter of formality to get a divorce attorney. Your success in recovering your legal properties will largely depend on the experience and credentials of the expert you hire for the job.
Legal Expertise and Guidance
- Understanding Legal Rights: An attorney knows family law and can explain your rights clearly.
- Proper Documentation: They ensure all paperwork is completed accurately, preventing delays.
Fair and Equitable Settlements
- Asset Division: An attorney helps identify and fairly divide marital assets.
- Child Custody and Support: They advocate for favorable custody arrangements and fair child support.
Reducing Stress and Conflict
- Mediation: Attorneys act as intermediaries, reducing direct conflicts with your spouse.
- Efficient Process: They streamline the process, helping reach a resolution more quickly.
Risks of Not Hiring a Divorce Attorney
Legal Mistakes and Oversights
- Misunderstanding Rights: Without legal knowledge, you might not fully understand your rights.
- Incorrect Paperwork: Errors in documentation can cause delays and legal issues.
Unfair Settlements
- Unequal Asset Division: You may end up with less than your fair share of marital assets.
- Unfavorable Support Terms: You might agree to terms that are not financially sustainable.
Increased Stress and Conflict
- Direct Negotiations: Handling everything yourself can lead to heightened conflicts and stress.
- Emotional Toll: Navigating the process alone can be emotionally overwhelming.
Long-Term Consequences
- Custody Issues: Poorly handled custody arrangements can affect your relationship with your children.
- Future Legal Problems
Consider hiring one with a proven track record in the state you’re in. If you live in Michigan, look for a Detroit or Traverse City divorce lawyer with years of successful court battles and settlements to their name.
4. Avoid doing anything brash and desperate
The reason you hired a lawyer to help you in securing your assets is that you may not have a thorough understanding of the process at best. Apart from that, you could also resort to actions that will jeopardize your claims.
Imagine you’re angry and frustrated during the divorce process. You might be tempted to make hasty decisions, like selling off shared assets quickly or making negative comments about your spouse on social media. These actions can backfire:
- Selling Assets Cheaply: You might sell valuable items for less than they’re worth just to get rid of them. This can hurt your financial situation in the long run.
- Social Media Posts: Negative posts can be used against you in court, affecting the outcome of your divorce and custody arrangements.
Practical Example: Sarah’s Story
Sarah was going through a tough divorce. In a fit of anger, she decided to withdraw all the money from a joint bank account without telling her spouse. This caused more conflict and legal issues, leading to a longer, more expensive divorce process. If Sarah had stayed calm and discussed the finances with her attorney first, she could have avoided these extra problems.
Steps to Stay Calm and Make Thoughtful Decisions
- Take a Pause: Before making any decisions, take a moment to breathe and think about the long-term consequences.
- Consult Your Attorney: Always talk to your divorce attorney before taking any major steps. They can provide valuable advice and help you avoid mistakes.
- Focus on the Future: Keep your long-term goals in mind. Making thoughtful decisions now will benefit you in the future, especially when it comes to financial stability and child custody arrangements.
By avoiding rash and desperate actions, you can navigate your divorce more smoothly and come out with a more favorable outcome. Stay calm, think things through, and consult with your attorney to make the best decisions.
It’s bad enough that you lacked a pre-nuptial or post-nuptial agreement, but hiding assets from the court would make things even more complicated. Always talk to your lawyer first before talking to the other party or accessing assets involved in the proceedings.
Endnote
A divorce would be smoother if you’ve had a prenuptial agreement. Otherwise, the tips above should help you keep your properties from falling to the other side and give you the peace of mind you’ve been waiting for.