Asset Division in Case of Divorce

Asset Division in Case of Divorce

A lot of people think that, when a couple divorces, they each get half the assets. This view is far too simplistic, and the law takes the circumstances of the relationship into account when dividing up the property – namely, how much property is available to divide, the contributions made by each spouse, the needs of each spouse and the justice of the distribution.

The actual value of the couple’s joint property is in fact very rarely split 50/50, due to other considerations, such as income, windfalls received during the marriage, expected windfalls after the divorce and the needs of any children.

If, for example, the husband has a much greater income and earning potential than the wife (it is nearly always this way around), then the court will probably give the wife a higher proportion of the joint assets. The court usually takes the view that the couple spent the marriage working together to maximise their joint earnings (with the wife most likely working less in order to be the primary caregiver to any children to allow the husband to work, be promoted and earn more) and therefore the wife deserves to get more assets to make up for the fact that she has less earning potential.

There have also been cases where inheritances during the marriage have affected the asset division. In one case, a woman’s parents died and left her over a million dollars before she and her husband separated. The court took the view that it was not fair to divide this inheritance, as if they had separated before the parents had died it would have all gone to her. The wife therefore received about 90% of the assets from the marriage.

However, expected windfalls (e.g. inheritances expected to come) can count as well. In another case, a woman who was the only child of wealthy parents received very little of the joint assets, on the basis that her parents would help her if she needed it and she would inherit a great deal, and so the husband needed the joint assets more as he had no prospect of someone to help support him.

As you can see, asset division can be hideously complicated, and the more money is involved the trickier it gets. The best option is to give all of the details to your lawyer, and discuss with them how much you actually need (and deserve) from the joint assets. They can then try to negotiate with this as the minimum amount, with any more than that a bonus. If your former spouse won’t agree to at least what you need, you may well have to go to court.