There is often a broad assumption that a spouse is entitled to his or her fair share, which amounts to exactly half of the marital assets. The truth is that what a spouse is entitled to during property division depends on the where they live, who their judge is or what process the couple decides to participate in.
In the United States, there are two major theories that guide the division of property during divorce. There is the community property theory, which states like Texas and California follow. Then, there is the equitable distribution theory, which Ohio law is based on. How do these differ?
First, we take a look at the theory of community property. This is where that “50/50” reasoning is found. While some people may argue that this is only fair, that word “fair” isn’t found anywhere in the process. There is basically no determination made by the judge beyond adding up the couple’s marital assets and dividing them in half.
Under the second theory of equitable division, factors such as the length of the marriage, education, age, health and others may be considered by the court. What is considered depends on the jurisdiction and how it is considered often lies with the discretion of the judge. A judge may determine, for instance, that a spouse who gave up career opportunities to raise the children may be entitled to a larger portion of the assets.
For those couples that want to have more individualized control over the process, they can choose alternative options such as negotiation. A couple can decide their own definition of fair and present a divorce settlement to the court. In other instances, a prenuptial agreement may control who gets what.
A blog post could never cover the extent of the law nor provide detailed advice for a particular situation, which is why it is so important to seek counsel from an experienced family law attorney in Ohio.
Source: The Huffington Post, “Why Where You Divorce Matters: Equitable Distribution vs. Community Property,” David Centeno, Aug. 28, 2013