How Is Marital Property Divided in a Divorce?

April 2, 2020

You’re getting a divorce and may be thinking, “How is property divided in a divorce?” Divorce property division can be one of the more daunting and time-consuming aspects of the divorce process, but it can be made easier with knowledge about the laws of your state and by following a few steps, as outlined below.

What is considered marital property in a divorce?

The first step in dividing property in a divorce is to determine whether the property is marital. Marital property is considered to be most property (and debts) acquired during the marriage. Separate (or non-marital) property is generally considered to be property received by either spouse as a gift or by inheritance or property owned prior to the marriage. Additionally, any property acquired by either spouse after separation or after starting the divorce proceeding in court is typically considered to be non-marital. Depending on the circumstances, non-marital (or premarital) property might be considered marital property if the non-marital assets were combined (comingled) with marital property during the marriage. Because your circumstances will be unique to you, it’s important to discuss with an experienced divorce attorney whether your property is marital, non-marital, or premarital.

What is discovery in divorce?

During a divorce proceeding, the spouses usually go through a discovery phase where documents are gathered and shared with both attorneys to identify the debts and assets of the marriage and to determine what property is marital or non-marital. For more information about the discovery process, click here.

Who determines property value?

Once all of the property has been identified, the value of each property (or debt) has to be determined. When valuing property, courts typically look to the property’s “estate sale value” or the value of the item in its current condition (usually a depreciated value). Courts generally will not use the value of the item when it was purchased new. It is possible for spouses to agree on the value of property. If no agreement can be made there are other tools such as an appraisal.

What is equitable?

After determining the value of the property, the process of dividing the property begins. Both Nebraska and Iowa are “separate property” states, meaning that the marital property of the parties must be divided “fairly” or “equitably,” but not necessarily “equally.” The courts in Nebraska and Iowa have determined that a fair division of assets is somewhere between 1/3 to 1/2 of all marital assets. Typically an agreement (or a judge’s decision) results in the spouses each receiving about one half of the value of this property. Spouses can choose to divide assets between them, sometimes with an equalization payment if one of the spouses receives more property than the other. Spouses can also elect to sell the property and split the proceeds.

Don’t go it alone.

Dividing property in a divorce can be difficult and overwhelming. Let one of our knowledgeable attorneys help guide you through the process. We will provide clarity about the process and your unique situation. Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us (virtually for now).

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

If you need help with an Omaha area divorce case, contact Hightower Reff Law today and come visit (virtually) with one of the attorneys at the Omaha office. 

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