Despite some variation from state to state, divorce laws in the U.S. generally provide for the equitable distribution of property legally and beneficially acquired by the divorcing parties during the marriage. This means each party is usually entitled to receive one-half of all “marital property” in the divorce. Under the law, “equitable” is defined as fairness. An unequal division of marital property may occur when the parties so agree, or where the court deems such a division as fair under the circumstances.
Property division is usually the biggest obstacle to finalizing a divorce. Divorcing parties often take contrary positions that turn out to be penny-wise and dollar-foolish. For example, a party may justifiably believe he/she is entitled to a few thousand more dollars in the division of marital property. If the other party disagrees, then the court must decide the issue in a trial. This will almost certainly generate additional legal fees and costs that will exceed the amount of property in dispute.
Not all property acquired or owned by the parties during the marriage is subject to division in a divorce. Property acquired by one party during the marriage through gift or inheritance from a third party is generally not considered to be marital property. The same applies to property acquired by either party prior to marriage. A divorcing party should carefully consider an attorney’s advice and all pros and cons before taking a position on divorce issues such as property division.