The loss of property is one of the biggest fears in any divorce. It’s scary to enter this situation without a clear idea of what you could keep and what you could lose.
Unfortunately, there are no easy answers to this dilemma. You cannot predict the outcome of a court’s decisions, and your attorney can only attempt to sway the court in your favor.
Education, however, is powerful. Learning everything you can about how divorce works will help prepare you for what comes. It may also empower you to give your attorney helpful suggestions.
In this article, we will discuss the different systems states use to divide marital property, and we will offer suggestions on how you can keep that property.
The Kinds of Property in a Marriage
First, let’s make sure we understand the classifications of property between you and your spouse.
Marital property comes from within the marriage, and both spouses own it equally. There are some exceptions, but generally, marital property is anything that either spouse purchases while married.
Separate property originates outside of the marriage, and only one spouse owns it. Examples include inheritance, gifts from someone other than your spouse, and property you owned before the marriage.
The Two Major Types of Property Division in a Divorce
There are always exceptions and variations, but generally, states use one of two systems: community property division and equitable property division.
Community property is considered the more outdated system, and only nine states still practice this method. It attempts to give each spouse 50% of the marital assets. Therefore, any property you keep will still cost you something.
If, for instance, you keep the $150,000 home, you will owe your spouse $75,000. You can pay them by selling the property and splitting profits, or you could simply give them the money you owe. Another option is trading physical assets totaling $75,000.
In equitable division states, property goes to the most deserving spouse. Marital property, remember, belongs to both parties. Therefore, it is legally sensible to give one spouse something without asking them to pay or trade for it.
Kentucky is an equitable property division state.
Claiming Entitlement to Your Property
To keep any property after a divorce, you must claim entitlement to that property. This is true regardless of the division system your state uses.
Claiming entitlement, legally speaking, is an argument that attempts to prove that the asset is rightfully yours. There are many ways to approach this position, such as:
- Primary Use of the Asset
Let’s say you have an expensive surround sound system. You were the one who bought it for the family, and you spent the time setting it up. Everyone in the house is generally indifferent to the system, but you cherish it. You’ve learned all its various functions, and you constantly play with the settings. In a scenario like this, you have a strong sense of entitlement to this asset. - Management and Upkeep of the Asset
This argument is particularly helpful for stay-at-home parents or people who need to keep their cars. The parent can argue that they spent more time in the home. They kept it clean and maintained, so they should keep it. The same is true for vehicles. Most likely, you need your car for work; you keep the gas tank full; you manage the oil changes; etc. Therefore, it is rightfully yours. - Contribution to the Asset
If you somehow increased an asset’s value, that is another strong argument for entitlement. For instance, you may have spearheaded remodels to the home, making it more attractive on the market.
If you’re concerned about losing your property in your divorce, reach out to us today for help. You can contact us online or call us at (270) 783-8311.