My name is XXXXX XXXXX I am one of JustAnswer's attorneys. I'll be helping you resolve your matter today.
Yes and no. This gets complicated. You live in a common law property state. Therefore, your marital property
will be divided thusly --
Separate property and debt is property that is generally:
1. Only your name appears on the account, title
, and or registration document; or
2. Acquired by gift or will or similar legal way by spouse during marriage; or
3. Declared as such by prenup or postup; or
4. Traceable property purchased by one spouse only; or
Recovery for personal injury
, but not medical expenses or loss of earning capacity.
If the property falls into separate property, it is the property of THAT party, but the other party is entitled to a “fair and equitable portion” of your separate property. “Fair and equitable portion” means generally that two-thirds go to the higher wage earning party and one-third to the other, lesser earning party.
Community Property and debt is everything else, including but not limited to:
1. Income from BOTH parties; or
2. Declared as such by prenup and postup; or
3. Gift from one spouse to another; or
4; All titled and non-titled property gathered during marriage.
Community property is AUTOMATICALLY ASSUMED unless proven to be separate property by a party “by a preponderance of the evidence.” Community property and debt is split 50/50. In case of titled assets such as homes, cars, etc., it usually is awarded to one party and that party is ordered to make an “equalizing payment” to the other party. For example, a car worth $10k will be given to the wife but the wife is ordered to make a payment of 5k to the husband. Time to make the payments or payment plans are a norm in such a situation. Equalizing payments can also be ordered if one party argues a “fault.” Generally, one party simply alleges irreconcilable differences. However, most states retain grounds for divorce where one party alleges fault when divorcing, such as neglect, assault, affair, etc, and because of this, the Court can award that party additional equalizing payments, and equalizing payments CAN INCLUDE CONSIDERATION FOR SCHOOL LOANS PAID BY OTHER PARTIES. So it's not a guarantee, but it's a factor.
Of course, if both parties come to an agreement about marriage property regardless of the rules above, the Court will most likely endorse said agreement in interest of post-divorce harmony. The above rules only come into play if the parties cannot agree on splitting of assets.
It is also common for parties to agree to 95% of the split, but then ask the Court to make a decision in regards XXXXX XXXXX 5% that cannot be agreed upon.
Finally, in a hotly contested divorce, either party can request a jury. Although a lawsuit (and yes, divorce is a lawsuit) is automatically set up to be heard as a bench (Judge) trial, either party can request a jury trial
. Your attorney can advise you on which is best in your case. For example, for a party whose arguments are based more on statute and case-law, a Judge is more preferable. A party who is using emotion heavily for their strategy, or is alleging fault, a jury can sometimes be more beneficial, since while jury is SUPPOSED to decide the matter by law only, many times jurors bend the law to come to their conclusions.
Best of luck in your matter. I'm here if you need any more clarification or follow up info.
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