How Property Division Works During a Divorce
Property division falls into one of two categories depending on the state in which you file. Most states follow equitable distribution rules. The others follow community property rules.
Nevada is one of seven states the follows the community property rules when dividing a couple’s property.
There are also two types of property, community property and separate property. Community property is anything you earn or buy after the marriage. Separate property is something gifted specifically to one spouse or property acquired before the marriage that has not been subject to commingling.
When the court considers a property that is separate or non-marital, that property gets set aside. It is not part of the distribution of community property. Separate property consists of the following:
- Inheritance of one spouse
- Property that a spouse purchased before the marriage (and didn’t commingle)
- Gifts during the marriage explicitly given as separate property
- Property a spouse buys after the marriage with money or assets that are already separate property
- Property bought after the marriage with an attached written agreement saying it will remain separate property
Commingling separate property is where this gets complicated. Let’s say you purchased a home before you married your spouse, but then paid the mortgage with money you earned after the marriage. Because the money you earn after your wedding date is community property, your home is now community property.
If you use the separate property for the benefit of the marriage, it becomes community property. Any inheritance or gifts must stay separate from the community property/accounts. If you deposit money given as an inheritance into a community bank account, then the money is now community property.
Any property that is community property, or separate property that becomes community property is divided equally between the two spouses during a divorce. This includes:
- Real Estate
- 401(k) & IRA accounts
The courts will divide community property equally between spouses.
Although Nevada is not an equitable distribution state, it’s good to understand how it works. Equitable distribution means that the court looks at several things to ensure both parties get equal assets and liabilities based on their situation. In simple terms, it means the court divides assets based on what it thinks is fair.
For example, if one spouse doesn’t work because he/she stays home to take care of the children, that spouse may get more assets than the other spouse. Alimony or spousal support may also play into the equation since the courts consider alimony as income to the receiving spouse.
You always hear about divorce cases where one spouse managed to hide assets or devalue something to make sure they came out ahead of the of their ex. This is different than protecting assets prior to divorce.
Engaging in this behavior is unwise. At best, the judge rules that the offending spouse pay out a portion of whatever they hid to the other spouse. At worst, it biases the judge against the offending spouse for the rest of the case. (Which can drag on for months in the most hotly contended cases.)
When all the assets and debts are tallied up, each spouse receives half. Period.
It doesn’t matter if one spouse cheated on the other and that is why the marriage is ending. Nevada is a no-fault state. The courts don’t care about the reason for your divorce. They’re just there to help sort out any points when a couple cannot agree on enough issues to file a joint petition.
Just because the courts mandate equal property distribution doesn’t mean that applies to the areas of child support or alimony.
Your divorce attorney will do the following three things when looking at property division:
- Determine what your assets are
- Determine for each asset whether it is separate or community property
- Determine the value of each asset
The division is not like dividing a tray of cookies. You take one then your spouse takes one, and repeat until they are gone. The value of all community assets gets split in half.
So if one spouse takes the house valued at $250,000, then the other spouse will get $250,000 in assets.
It’s best for both of you if you can work through this and divide your property equally with your divorce attorney overseeing the whole process. The less time you spend in court, the faster (and cheaper) the process.
Attending mediation meetings is a great way to figure out how to equally divide the property and debts. A mediator will help you, and your ex-spouse find ways to distribute your property evenly.
Nevada divides debts in the same way as the assets, equally.
This can present problems if one spouse tends to run up credit card debt or take out loans more frequently than the other.
Community debts include the following:
- Bank loans
- Credit card balances
- Vehicle loans
- School loans
- Medical bills
If you have concerns about your spouse’s debts, speak with a divorce attorney about your options. In the state of Nevada, the creditors of your ex’s separate debts cannot come after you. A divorce attorney can help you navigate that maze and avoid burdens that might not otherwise be yours.