If you and your spouse are preparing for a divorce and are able to come up with a fair division of your assets, the courts in North Dakota will honor that agreement. Often, negotiating a divorce settlement with your spouse outside the courtroom is the best way to achieve a fair outcome: The two of you know your situation better than the courts. For personal property or property with strong sentimental value, negotiating its distribution with your spouse is the sensible option. If, however, you are unable to reach a compromise on your own, the courts will apply “equitable distribution” and determine the division of property for you.
Marital Property and Separate Property
Property acquired after the parties are married is considered “marital property.” Property owned by either party before marriage is considered “separate property.” Debts are also subject to the same designations as assets and may be distributed between the parties during the divorce.
Despite the distinction between marital and separate property, both are subject to division in a divorce in the interest of fairness. There is, however, preference given to dividing the marital property first so that the separate property that each spouse brought into the marriage or acquired during the marriage remains property of that spouse.
Examples of marital property include:
- Real estate;
- Stocks and bonds;
- Personal property (e.g., furniture, antiques, artwork, collectibles, etc.);
- Retirement interests (e.g., pensions, annuities, 401(k) plans, etc.);
- And businesses.
“Equitable” and “equal” do not mean the same thing, but courts begin from the assumption that the property will be divided equally between the divorcing spouses. Then the courts will examine the specific circumstances of each party to adjust the distribution fairly. For example, the court will consider each spouse’s contributions to the marriage, and not merely in economic terms. The duration of the marriage may impact the court’s decision, as well.
If you are considering a divorce, reach out to Tracy Lyson, an experienced divorce attorney at O’Keeffe O’Brien Lyson Foss in Fargo, ND.
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