Financial Rights in Divorce

by Teo Spengler

    The emotional aspects of a divorce can overshadow other changes that come with the end of a marriage, but the division of assets and debts is also a very serious matter. Understanding your state's laws about property division and financial disclosure helps you to obtain your fair share.

    Community Property

    The division of assets and debt between two spouses is one of the central issues in a dissolution action. Most states use one of two systems: the community property system or the equitable distribution system. In community property states, all income earned by either spouse during the marriage belongs to both spouses equally. Debt incurred during the marriage is also shared equally in a divorce. Upon dissolution, the court splits the marital property and debt evenly between the two spouses. If an asset cannot be physically divided, like real estate, one spouse may be assigned the asset while the other spouse receives bank accounts or personal property of equal value.

    Equitable Division

    If you are divorcing in a state with equitable division laws, you have the right to a fair share of the total property owned by you and your spouse. The court need not divide the net assets precisely in two; the goal is simply to make the division fair for both parties. Depending upon the state, the judge often has the authority to assign one spouse's separate property to the other spouse if required to make the division equitable.

    Family Support

    The lesser-earning spouse in many states is entitled to temporary or longer-term spousal support payments from the higher-earning spouse. The amount of the support depends on a variety of factors, including the total income received by both spouses and the disparity between their earnings. The length of the marriage also affects the support award. In addition, each spouse is required to help support minor children from the marriage. Generally the higher-earning spouse is ordered to make monthly child support payments to the lesser-earning spouse if she is the custodial parent, according to formulas set by each state.

    Discovery Process

    It is impossible to determine your fair share of marital property and support unless you have access to your spouse's financial information. Discovery in divorce proceedings helps to ensure that all relevant financial information is shared. Each spouse is entitled to ask the other to produce documents and answer written and oral questions in a divorce action, and the responding spouse must swear under penalty of perjury that the information exchanged is accurate and complete.

    About the Author

    Living in France and Northern California, Teo Spengler is an attorney, novelist and writer and has published thousands of articles about travel, gardening, business and law. Spengler holds a Master of Arts in creative writing from San Francisco State University and a Juris Doctor from UC Berkeley. She is currently a candidate for a Master of Fine Arts in fiction.

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