Dividing The Marital Estate: What’s Involved, Who Gets What?

However amicable your divorce is, it can still be a stressful time, particularly when it comes down to dividing up your assets. Despite the best intentions of both parties, it is all too easy to get bogged down in the minutiae and spend time arguing about minor issues. To help avoid this, it can be useful to understand some of the principles used in divorce settlements.

What Is the Marital Estate?

It is important to be clear on the difference between the marital and non-marital estates. The marital estate is all the property and belongings that you and your spouse have accumulated during your marriage. The non-marital estate is those things that you brought into the marriage, whether it is money, property or other assets you have inherited or otherwise received outside of the marriage.

Sometimes dividing up assets is straightforward. If you haven’t been married long then it is usually pretty easy to recall what belongs to whom and to divide up the wedding gifts between you. Many divorces, however, are more complicated. Factors such as salary differences between spouses, cash gifts from parents to help purchase your first home and paying for home-improvement works all need to be resolved. The impact of having children, particularly if one party gives up work or reduces their career aspirations to look after them, can introduce potential minefields when it comes to splitting up the marital assets and can lead to resentment and one or both parties feeling hard done by.

Who Gets What?

Regardless of who contributed how much financially, all the things that were purchased during the marriage are considered to form part of the marital estate. This includes items such as the family home, cars, furniture and even retirement provisions.

There are no hard and fast rules about who will get what. Many factors will be taken into account, such as the welfare of any children, the income and other assets of both parties, any financial obligations that are marital, the contribution each party made to the home and bringing up children and, in exceptional circumstances, the conduct of the parties involved.

The courts will try and divide these marital assets equitably. This does not mean, however, that they will be split on a 50/50 basis. If children are involved a court may rule that the property is transferred to one party or that one party and the children stay in the house until the children become independent, at which point it will be sold and the proceeds divided. Of course, maintaining the marital home could be too much of a burden in some circumstances and a sale may be prudent. If children are involved then the key concern will be ensuring that they have an appropriate place to live.

However small or large the marital estate, it is a good idea to take legal advice on how to equitably split it. This way you can both be sure that you have reached a reasonable settlement and move forward with your new lives.

This guest post has been composed and contributed by legal blogger Zoe on behalf of Hughes Carlisle.