One of the most difficult parts of a divorce can be handling property division. Especially after a lengthy marriage ends, it is complex to determine which property belongs to which spouse and how assets and money should be divided. The process involves not only identifying marital property but also valuing the property and figuring out how it can be split.
The most important rule for property division during a marriage dissolution is that all property -- including real property, earnings, etc. -- that was acquired by the spouses during the marriage using the earnings of one of the spouses is classified as marital property. Marital property can include business proceeds, pensions, retirement savings, automobiles, IRAs, and real property. Once classified as marital property, it must be divided fair and reasonably according to the circumstances. This is referred to as equitable division, which is distinct from equal division.
Not all property acquired by the spouses during the marriage is classified as marital property and subject to equitable division, however. If a spouse received property through inheritance, devise, gift, or bequest, that property belongs only to the receiving spouse and can be retained in full by that spouse.
The equitable division of fluid assets, such as bank accounts and other monies, is easier than the equitable division of other forms of property. For example, dividing the funds contained in a pension or retirement plan can be difficult to achieve without incurring tax penalties or consequences. In these situations, however, an experienced attorney can use a Qualified Domestic Relations Order to transfer funds contained in pension or retirement plans from one spouse to another.