Who Gets What? Navigating Property Division in a Divorce.

November 28, 2017

 

During a divorce, one of the major and often times most stressful issue to deal with is the division of the community and seperate assets, property and debts. There are several steps that must occur to produce a fair and productive property division.

 

First, the assets must be identified. This is typically done by completing a property list consisting of an inventory of all assets, with values for each item. This should be very detailed and include all of the assets and debts owned by both parties.

 

Once the property is identified, the next step is to characterize the property and assign it as you see fit. Before going into characterizing the property, it is crucial to understand that Idaho is one of a handful of states that is a “community” property State.

 

Community property states follow the rule that all assets acquired during the marriage are considered "community property", this includes all property acquired during marriage except for property acquired by gift or inheritance. Separate property is property that is owned by an individual before marriage, or property that was acquired during the marriage by gift or inheritance. The distinction between community property and separate property is critical because the court divides the community property between the parties but cannot do so for separate property. It is imperative that you characterize each item as separate or community property, and also suggest how the community property should be divided between the parties. 

 

Once all of the assets have been identified and characterized, the court can make its division. The effect of the division of the property is to give each spouse with the exclusive right of possession of the specific property awarded to them. In Idaho, all community assets and liabilities are subject to a just and right division. The just and right division is based on the facts of each case and is not necessarily a 50/50 split. In fact, disproportionate divisions are awarded if the right factors are at play, and are proven with fact and case law. Whether a court’s division of the community assets and liabilities is a just and right one is determined by the net value of assets each party receives – not the quantity of the assets.

 

As stated above, the court considers many factors in making the just and right division of the community assets and liabilities. Even though Idaho does not require fault to get a divorce, courts consider fault in the breakup of the marriage when making the division. The other general factors that a court considers in making its division are:

  • The parties’ abilities to support themselves;

  • The financial costs incurred by a party while the divorce is pending; and

  • Length of the marriage.

When making the division the court does not necessarily have to split each asset. What this means is that if one party gets the house, the other could be awarded an interest of equal value in a retirement account.

 

It is vital that you create and characterize a detailed property list early on in the divorce proceedings, we normally like to attach a copy with initial pleadings or in an answer and counterclaim. 

 

Morriss Law can assist you in this process, our team has extensive experience working with large and small property division. Let us know if you have any questions regarding your property division. 

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