Most of this section shows how property SHOULD BE divided between husband and wife. Practical realities are different.
The division of marital assets counts as one of the toughest tasks that accompany the dissolution of a marriage. If you find yourself caught in the middle of a divorce in which division of marital property is an important issue, an experienced lawyer can help you in safeguarding your best interests and also protecting your rights.
Equitable Division: When a couple decides to divorce, their joint assets are divided in an equitable and fair manner. The court takes into consideration numerous statutory factors such as the duration of marriage, the amount of marital property the couple has, and the individuals’ circumstances and potential earnings, to arrive at a decision.
Marital duration: Generally, the longer a marriage lasted, the more complex property division gets. But this also means that more joints assets would have been acquired during the course of a marriage that lasted long. Also, if one of the spouses was dependent on the other spouse to maintain a joint standard of living, a higher percentage of marital assets may be awarded by the court to that spouse so as not to affect his or her quality of life. Not only this, the court may also direct the dependent spouse to be eligible for receiving spousal maintenance if it was a long-term marriage. This decision will be taken separately from any sort of division of marital property.
The amount of marital property: Any asset that was acquired by either spouse during the course of their marriage is accounted as marital property. Assets that were owned by respective spouses prior to marriage do not fall under the category of marital property. The same goes for gifts, compensations for pain and suffering or inheritances that were received only by one spouse.
Passive appreciation of assets owned individually by a spouse prior to marriage will not be considered marital asset. But, in the event that the spouse who does not own the asset had significantly contributed to appreciation of the asset, some part of it may be marital property. However, the monetary value of such appreciations would be complex to calculate. If a spouse acquired assets with the intention of keeping them in his or her own name, they may also be exempted from being considered marital property. But this may not always be clear. In some cases there may be written proof of keeping assets separate but in other cases it may have to be proven that such an asset did not ever benefit the other spouse in any way.
Personal circumstances: When dividing marital assets, the court will take into account the spouse’s age, income and potential earning capacity as well as health. Age can significantly affect the earning capacity of an individual since in some cases entering the job market after long period of absence may have a negative effect on their income. Health concerns may also be an impediment in finding appropriate remunerative employment.
Valuing Marital Property: Once all the assets have been marked and classified as marital or separate property, an estimated value of the marital property should be determined. Sometimes, a valuation date may need to be determined or even the rupee amount be identified. Since assets of different nature such as real estate, business stakes and professional licensures are involved, this may prove to be a complicated process. The court will go through statutory factors in order to determine equitable division once the total rupee amount has been determined.
Marital Debts: Debts are divided in the same way as property is when it comes to divorce. Unsecured credit card debt and mortgages may be considered part of the property division process. Even student loan debt may be apportioned in some cases if the borrowed money had gone into living expenses and if the loan subsequently allowed one of the spouses to earn a considerable amount of money the both the spouses benefitted from over the course of the marriage. Marital property division can be a fairly lengthy and complex process. Hiring a lawyer experienced in handling such cases will give you the required legal support that can bring about a division in marital property that is most advantageous to you.