August 5, 2019

Myths About Property Division in Divorce

Myths about the division of property in a divorce in Connecticut abound.  They often result in unrealistic expectations which can lead to unnecessary expense, delay and hard feelings.  Let’s debunk three of the most common myths. 

Myth #1: Property must be divided equally between divorcing spouses.  There is no 50-50 rule.  Instead, the law requires an equitable distribution of the spouses’ property.  Said another way, the judge must divide the property fairly.  The law has a list of factors for a judge to consider in deciding what is fair in each case.  Length of the marriage, age of the spouses, and the cause for the divorce are just a few.  Applying those factors may often result in a 50-50 split, but it isn’t automatic.

Myth #2: Individually owned property doesn’t count and title determines division.  It doesn’t matter whether one spouse holds title or whether they hold it jointly with each other, or even with others.  Almost all property in which a spouse has an interest can be granted to one spouse or the other to accomplish a fair result.  So, for example, a bank account in the name of one spouse can be ordered transferred to the other spouse or, as commonly happens, full ownership of the jointly-owned marital home can be ordered transferred to one spouse.  Where title to an asset cannot be transferred because of its nature, such as a partnership interest or executive compensation account, its value will still be considered.  Then other property, like a bank account, may be awarded to the other spouse so that there is a fair overall result. 

Myth #3: Retirement accounts don’t count.  Whether or not vested, or in pay status, or qualified for income tax purposes, retirement assets are property subject to fair division between divorcing spouses.  There are specific mechanisms for transferring IRAs, 401(k)s, pensions, and most other retirement accounts between divorcing spouses without incurring any tax or other penalty.  There are myriad ways to take non-qualified assets into account to assure an overall property division that is fair to both spouses.

Understanding property division truths rather than myths is crucial for any person who is in a divorce or contemplating a divorce.  An experienced divorce lawyer can help you understand how the law on property division would apply to your particular situation. 

This article first appeared in the August 1, 2019 edition of The Cheshire Citizen.

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