Who Gets The House? And Other Questions Relating to Division of Assets.

Who Gets The House? And Other Questions Relating to Division of Assets.

When our parents were young, life progressed in this fashion: finish school; get married; buy a house; have children; retire. As life changed, this progression has also changed for many.  Maybe you bought a house after you finished school and before you even met your spouse. Maybe you had children together and then bought the house and got married. Or maybe you progressed in the more traditional style of life. No matter what occurred, or how, you and your spouse are now going through a divorce. We all hope for an amicable separation, wherein you will both evaluate what you have and compromise on who walks away with what. This does happen, but it may not be the norm. Many times, people going through divorce are at their worst, and the love they felt just a few years ago has turned to an equal level of contempt. Here are some tips to help you determine how assets may be divided.

The Antenuptial (Prenuptial) Agreement

If you have property, whether it be real or personal, you should devise an antenuptial (also referred to as a prenuptial agreement) before getting married.  A prenup is not an admission of failure or an expectation of failure. It is good business sense. Consider it a contract that is signed before you enter a business arrangement. The truth is, in the eyes of the law, marriage is no different than a business partnership between two unrelated individuals. Good business sense tells you that you will not go into a business partnership without a contract between the partners. Therefore, why would you enter a personal partnership any differently? By having an antenuptial agreement, you may avoid any issues involving the division of assets that you both brought into the marriage prior to getting married.

The Marital Assets

The law is both clear and unclear regarding the division of marital assets in a divorce. The law states that certain guidelines must be followed, including that assets should be equitably divided between the parties, however, it also allows for the parties to come to their own agreeable compromise. For our purposes, we will assume that you and your spouse cannot agree. For the marital home, one party can buy out the other party’s interest in the home, or they can agree to sell the home and split the proceeds in some manner after the mortgage is repaid at closing.  As for all other types of property, the law also mandates an equitable division (not necessarily an equal division).  In many cases, each party may also have property that is non-marital, such as a 401k, 403b, 457, IRA, Pension, or Brokerage Account.    

No matter how you look at it, no divorce should be entered lightly and without representation. If you are going through a contentious divorce and require strong legal representation, contact the Family Law experts at Lake Harriet Law Office at 612-750-4843.

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