Division of Property in a Divorce
LGBT Divorce Lawyer in Winston Salem
For same-sex couples, the reality of marriage equality can mean a new and wonderful way to express love and build a legally binding framework for their relationship. However, the reality of LGBT marriage means that LGBT divorce is also a reality, with all its legal implications. This falls to Winston Salem LGBT divorce lawyers to help couples find their way through the complexity of divorce law.
The laws governing LGBT divorce are not different from the laws for any marriage, but the unique circumstances of LGBT marriages make the existing divorce law somewhat unfair to LGBT couples. Your LGBT divorce lawyer can explain in detail how the law will affect your situation in Winston Salem, but in general, since marriage equality has only been the law since 2015, most LGBT marriages are relatively recent, whereas their relationship may be years, even decades, old.
Couples who had lived together for a long time before they were married are sometimes surprised to learn that only property and assets obtained after the date of the marriage are considered “marital” property – that is, the property of both spouses, to be divided equally. Anything obtained before, including business interest, homes, vehicles, and savings account contributions, are the sole property of the individual who obtained them at the time, even if you were already in a relationship. This can cause a great deal of difficulty for LGBT couples, and so LGBT divorce attorneys in Winston Salem are often required to help sort out the confusion. Your LGBT divorce lawyer is not only familiar with the law as it applies to divorce, but also as it applies to the often unique reality of LGBT relationships.
Laws Governing Property Division in Winston Salem: An LGBT Divorce Lawyer Guide
The laws dealing with the division of marital property are different in every state. Here in Winston Salem, the law requires a fair and equitable division, which usually means 50/50, but not always. If a judge believes a truly equal division of property would be unfair to one of the spouses, the judge has the discretion to divide the property in a different way. As LGBT divorce lawyers, we hope that you can work out a property division without the need to go before a judge, but if that ends up being the case for you, the judge will consider the following factors:
- The length of the marriage
- Each spouse’s age and mental and physical health
- Occupations, income sources, and savings
- Skills which may be used to obtain new employment
- Employability factors such as absence from the workforce
- Liabilities and contributions to appreciation or depreciation of marital property
- The tax consequences
Often, LGBT divorce attorneys and their clients are able to come to an agreement as to property division on their own, in which case a judge will not need to apply the law to the division of property. However, in the event that you are not able to work out the property issues on your own or with the help of an LGBT divorce lawyer, you will need to seek arbitration or a judge to decide the case for you.
Marital Property vs. Separate Property: An LGBT Divorce Lawyer Guide
The first step in the process of dividing property is determining which property is marital, and which is separate. With the help of an LGBT divorce attorney, this can be done rather easily. Marital property will include most of the assets, property, and debts taken on by a couple during their marriage. Separate property refers to property or assets owned by a spouse before they were married, or during the marriage by a gift, or through inheritance. With the help of LGBT divorce lawyers, you can sort through your accounts and belongings to determine these categories.
Other examples of separate property include items either purchased with, or exchanged for, separate property, any earnings gained from separate property, and appreciative value of separate property. In addition, any disability benefits one spouse recovers due to a personal injury or disability claim will be considered separate property if they are for future medical expenses or permanent disability.
It is sometimes possible for separate property to be converted into marital property if the title to that property is altered from individual ownership to joint ownership. Legally, this is considered making the property a gift to the marriage. Separate and marital property may also be mixed, or commingled. Some couples will choose to combine their otherwise separate assets, while others may do so due to carelessness. A bank account belonging only to one spouse may become marital property if it receives any deposits from the other spouse. In addition, a house owned by one party can become marital property if both partners contribute to the mortgage and upkeep costs.
In the event that both spouses are not able to determine which property belongs to which spouse, then, a judge may need to make a determination as to whether any or all of this commingled property could be considered a gift to the marriage. These situations are quite complex, and the assistance of an LGBT divorce lawyer is highly recommended.
In most cases, separate property is not divided in LGBT divorce, but an Winston Salem judge has the discretion to include it for fairness. If the judge makes any decisions beyond splitting the marital property equally, he or she must explain the reasons for the actions in the court record.
Assessing the Value of Property: An LGBT Divorce Attorney Guide
Once a determination is made as to which property is marital, the couple, or the court, usually with the assistance of an LGBT divorce lawyer, will assign a monetary value to each of the items. Professional appraisers can be used to determine values for the property if necessary, as sometimes it is difficult to evaluate the value of the property, and the assistance of a financial professional such as an actuary or a CPA is required.
Dividing Property with the Help of an LGBT Divorce Attorney in Winston Salem
Spouses are able to divide assets as they wish by assigning items to each spouse, perhaps with an additional payment to equalize the amounts if one spouse gets more material property than the other. In other cases, the property is sold, and the proceeds are divided. A couple may also, with the help of an LGBT divorce lawyer, decide to continue owning the property jointly, but this is not always an attractive option for a divorcing couple. Still, keeping the family home until the children are finished with school can be a worthwhile reason for continuing joint ownership of property.
In addition, the couple needs to assign all debt taken on during the marriage, including their vehicle loans, mortgages, and credit card debts, to one of the spouses. This is often difficult, but with the help of an LGBT divorce attorney, it is not impossible and can often be negotiated.
Prenuptial Agreements and Your LGBT Divorce Attorney in Winston Salem
The reality of same-sex marriage also means that LGBT people are able to obtain prenuptial agreements. Many of them do so not because one partner is wealthy, as in the popular idea of the prenup, but because they have been together for many years before getting married, and are in a situation where most of their possessions will be considered separate property under the law. Prenuptial agreements, which can be drawn up with the help of LGBT divorce lawyers in Winston Salem, can be very helpful in the event of divorce. Unfortunately for those already married, prenuptial agreements may only be signed before the wedding day.
If you do not have a prenup, if at all possible, LGBT divorce attorneys will urge you to try to divide assets amicably and equitably without involving the courts. If you can work out a plan for a peaceful separation, this will result in a more peaceful separation for everyone – particularly if there are children. In fact, if you can resolve child and property issues on your own, you will only need an LGBT divorce attorney in Winston Salem for the purposes of filing the paperwork.
Reach Out to an LGBT Divorce Attorney in Winston Salem Today
As Winston Salem LGBT divorce attorneys, we know very well that anyone faced with the reality of divorce is going through a very stressful and emotional period. In addition to being faced with the idea of losing a partner you have had for quite some time, you are worried about the very real prospect of losing your assets and property. This doesn’t make you selfish – these are things that, as far as you were concerned, belonged to you as recently as a few days ago.
As LGBT divorce attorneys in Winston Salem, we are here to protect your rights and your assets, and help you to come to an agreement that is best for you. Whether your divorce is amicable or contested, contact an LGBT divorce lawyer in Winston Salem today for a free consultation – so that you don’t need to face the uncertainty of LGBT divorce by yourself.