WHAT IS EQUITABLE DISTRIBUTION?
- Typically, a divorce action involves the equitable distribution of marital assets, which are resources acquired during the marriage.
- Equitable distribution of assets can range from dividing jewelry, cars, furniture and retirement accounts.
- Perhaps the most common marital asset sought to be equitably divided though is a marital residence.
- The most common options for parties to a divorce action is, one spouse buys out the other spouse’s equitable portion in the home and becomes the “new owner” solely upon the judgment of divorce – and vice versa with the other spouse making the same offer – or the parties selling the marital residence and thereafter equitably dividing the proceeds from the sale of the house.
PROPERTIES PRIOR TO THE MARRIAGE
One issue which may arise is determining a spouse’s rights to a house purchased prior to the marriage.
The legal presumption is that any property purchased prior to a marriage will be deemed separate property, or at the very least that spouse will receive a credit towards the house purchase (to the extent there is a mortgage remaining).
VARIOUS FORMS OF OWNERSHIP
In most divorce cases, spouses jointly own property purchased during the marriage, creating an interest in property known between the husband and wife as “tenants by the entirety.” This means that each spouse has a right of survivorship over the property and neither party can terminate his/her spouse’s interest in the residence without the consent of the other.
Conversely, “tenants in common” is typically created in business purchases among partners, for instance, while a “joint tenancy” is established in domestic partnerships.
While a boyfriend/girlfriend or same-sex couple may decide to buy a property together, issues most definitely arise later upon marriage. This commonly is an issue which arises in the LGBT community where marriage has become recognized and legalized in most states over the course of the past decade. In that case, the parties’ sole legal remedy may be to file a partition action.
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