After two people build a life together—often incorporating property, finances, pets, and children—it can be difficult to sever that life into two separate but equal pieces. Although many people assume that the court will divide everything 50/50 (and some spouses stay in unhappy or unhealthy marriages due to this misconception), the truth isn’t quite so simple or clear cut. Property division in divorce is complex, so be sure to consult with an experienced family law attorney to identify potential issues, resolve those issues when possible, and strive for a fair division of property.
Property Division in Divorce
How does a court divide property between divorcing spouses?
In Missouri, the court must first set aside non-martial property and then divide marital property and debt “in such proportions as the court deems just” (source) after considering all relevant factors, including the following:
- Economic circumstances of each spouse
- Contribution of each spouse toward the acquisition of marital property (including contributions as a homemaker)
- Value of the non-marital property set apart to each spouse
- Conduct of both spouses during the marriage
- Custodial arrangements for any minor children
Although the court will typically seek to enforce a 50/50 split during property division in divorce, this can be complicated by other facts. For example, if one spouse will retain the couple’s residence, the other spouse will likely be entitled to a greater portion of equity. Or in other cases, overwhelming debt may push a marriage toward divorce and make it difficult for the couple to split both their assets and their debts fairly. In this case, you may wish to file for bankruptcy (as a married couple) as you’re dissolving your marriage to make property division in divorce more manageable.
What is marital property?
Property division in divorce typically includes only “marital property.” In Missouri, this term refers to all property acquired by either spouse after their marriage except the following:
- Property acquired by gift, bequest, devise, or descent
- Property acquired in exchange for property acquired prior to the marriage
- Property acquired in exchange for property acquired by gift, bequest, devise, or descent
- Property acquired by one spouse after the couple is legally separated
- Property excluded in a valid written agreement of the spouses
- The increase in value of a property acquired prior to marriage (except in certain cases outlined in Section 452)
Do we have to divide our property in court?
No. Some couples amicably divide their property without professional assistance. However, in most cases, disputes arise that make the process impossible. If you would prefer to avoid the courtroom, consider using mediation to resolve your disputes without a judge’s ruling. Most divorces in the United States these days are settled without a trial, though many couples do require mediation and/or negotiation to reach a final agreement.
Who gets the house?
A divorcing couple’s residence can become a war zone as both parties seek to retain their home. If you can’t decide on your own who will keep the house (or apartment, condo, etc.), the circumstances of your situation will likely dictate who stays and who goes. For example, if you have children, the spouse with primary custody will likely remain in the marital home to prevent uprooting the children. However, if children are not involved and one spouse purchased the house with separate funds, they will likely keep the home. In more complicated cases, neither spouse will have the right to force their spouse to vacate the home, and the court will decide who stays based on the state’s property system and laws.
Although you may have hoped for an exact 50/50 split, remember that such precise property division in divorce rarely occurs these days. To begin the process of dividing your marital assets, please contact Replogle, Tyrrell & Robertson. Our attorneys understand that every family law case is different, and with our experience and dedication, we can help you prepare for your divorce, make sensible decisions regarding property division, and address any problems that arise. Give us a call at 417-859-3979 (our Marshfield office) or 417-893-5121 (our Springfield office) to get started.