One of the challenges divorcing couples must face is dividing their marital property and assigning marital debts. Connecticut law requires the division of property in divorce to be equitable, meaning that it must be fair but not necessarily equal. Some couples are able to agree on their own on how they'll divide their marital property, while others use the help of attorneys or a mediator to negotiate a settlement. Couples who don’t manage to resolve property issues themselves will end up going to court to ask for a decision from an arbitrator or a judge.
Although Connecticut courts frequently refer to property a couple acquires after marriage as “marital property,” the law in Connecticut allows a judge to divide not just marital property, but all of both spouses' property, in any manner that seems fair, regardless of which spouse actually owns it or when it was acquired. If one spouse owns property before marriage, or acquires it by gift or inheritance, a court will usually, but not always, treat that property as a non-marital asset and award it to the original owner in a divorce. But if the court deems it fair, separate property can be divided.
In many cases it is difficult to determine what property is marital and what property is not. Marital and separate property can become mixed together—sometimes called “commingling.” A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage and other expenses. If the spouses aren’t able to decide what belongs to whom, the judge will have to decide whether or not to treat any of the commingled property as premarital property belonging only to one spouse.
A couple making their own agreement can divide assets in whatever way they see fit. Some couples have a premarital agreement defining property as separate or marital; if there is a prenup, it can make dividing property much easier.
The spouses—or the court if the spouses can’t agree – generally assign a monetary value to each item of property. Appraisals can help a couple determine the value of real property as well as items like antiques or artwork. Retirement assets can be very difficult to evaluate and may require the assistance of an actuary, C.P.A., or other financial analyst.
Spouses can divide assets by assigning certain items to each spouse, or by selling property and dividing the proceeds. They can also agree to hold property together; this isn’t a very attractive option for many people, because it requires ongoing interactions with an ex-spouse, but some couples agree to keep the family home until children are out of school. Others may keep investment property in hopes it will increase in value.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans, and credit card debts, to one spouse or the other.
If the couple can’t agree on how to divide property and debts, a judge will decide, taking into account each spouse’s:
Other factors a judge will consider include the length of the marriage; the contributions of a spouse to the acquisition, preservation, or appreciation in value of either spouse’s estate; and the causes for the dissolution of the marriage—which could include consideration of whether one of the spouses was primarily responsible for the breakdown of the marriage. There is no fixed formula for determining what is equitable; every case depends on the individual facts and circumstances.