Divorce Property Division

Apart from child custody, one of the primary concerns of a divorcing couple is what to do with shared property. Who is going to get the house? Who is going to get the dog? The answer is contingent upon the state’s divorce laws and the spouses’ ability to reach an agreement.

This article addresses some of the most frequently asked questions about divorce property division.

When We Divorce, What Happens to Our Property and Debt?

The simplest way to deal with property during a divorce is to agree on how to divide it between you. When divorcing couples are unable to agree on how to divide marital property amicably, the matter may be brought before a judge in family court.

Under state law, property division is generally handled in two ways:

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, as well as the US territory of Puerto Rico, are community property states. This means that property acquired during the course of the marriage is considered community property (although there can be exceptions). Typically, community property is divided evenly during a divorce, while separate property is retained by its owner.

Equitable Distribution: In general, all other states adhere to equitable distribution. Rather than simply dividing the property’s value in half, a judge (or the couple themselves) will determine what is equitable or fair. In practice, this may mean that the higher-earning spouse receives two-thirds of the property, while the other spouse receives only one-third.

Take note that when courts divide property, this does not necessarily mean that the property is split literally (or physically). A court will calculate the total value of the marital estate and allocate a percentage to each spouse. Each spouse must secure that amount in their own unique way, which may include selling a home, transferring a portion of an IRA, or buying out a spouse’s interest in a business. These are the property division details that a divorce attorney assists you in determining.

What Is the Distinction Between Community and Private Property?

Community Property: Unless otherwise specified, this term refers to all property, assets, and debt acquired during the marriage. For example, a loan may have been taken out specifically for one person. It could be their own debt.

Separate Property: This term refers to property acquired prior to the marriage, as well as gifts, court awards, inheritance, and pension proceeds received during the marriage. Separate property acquired remains separate property (e.g., a boat bought with inheritance money).

Be aware that separate property can become community property if it is commingled. For instance, an inheritance used to pay off a mortgage, or a business started prior to marriage and sustained by the marriage.

Property acquired with commingled funds: If you acquire or maintain property using a combination of separate and community funds, a court is likely to determine that it is community property. If you wish to keep your property separate, you must work diligently to do so; otherwise, it will become commingled and converted to community property.

Who Gets the House in Property Division?

Who gets the house is a matter of circumstance. If there are no children, courts distribute the marital home differently.

Neither party has the legal right to demand the other’s departure, but one partner can always make the request. That said, it may be illegal for them to lock you out before the divorce is finalized, while you still own the home. You may contact the authorities if they do so. The obvious exception is in cases of domestic violence in which one partner has been served with a restraining order.

Caution: Unhappy relationships can become extremely toxic at times. Take care not to fabricate domestic violence in order to evict the other partner. If the judge believes you’ve done this, you could jeopardize your right to marital property, including ownership of the house.

If you and your spouse are unable to agree on who gets the house, the court will make the decision based on its rules, state law, and the type of property system in your state.

If you have children, the parent who is responsible for the majority of child rearing typically retains the marital home.

If one partner purchased the house with their own money and there are no children, they can generally keep it and require the other to vacate.