Property Division And Divorce

Apart from child custody, a divorcing couple’s primary concern is what to do with shared property. Who is going to be the owner of the house? Who is going to take possession of the dog? The answer is conditional on the state’s divorce laws and the ability of the spouses to come to an agreement.

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

What Happens to Our Property and Debt When We Divorce?

The simplest way to resolve property issues during a divorce is to agree on a division plan. When divorcing couples are unable to reach an amicable agreement regarding how to divide marital property, the matter may be brought before a family court judge.

Property division is generally handled in one of two ways under state law:

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

Equitable Distribution: All other states, in general, follow an equitable distribution policy. Rather than halving the value of the property, a judge (or the couple themselves) will determine what is equitable or fair. In practice, this may mean that the spouse with the higher income receives two-thirds of the property and the other spouse receives only one-third.

Bear in mind that when courts divide property, this does not always mean that the property is literally divided (or physically). A court will determine the total value of the marital estate and divide it equally between the spouses. Each spouse is responsible for securing that amount in their own unique way, which may include selling a home, transferring a portion of an IRA, or purchasing out a spouse’s interest in a business. These are the details of property division that a divorce attorney can assist you with.

How Is the Line Drawn Between Public and Private Property Defined?

Unless otherwise specified, the term “community property” refers to all property, assets, and debt acquired during the marriage. For instance, a loan may have been made specifically for one individual. It could be due to their own indebtedness.

Separate Property: This term encompasses property acquired prior to the marriage, as well as gifts, court orders, inheritance, and pension proceeds received during the marriage. Separate property acquired continues to be distinct property (e.g., a boat bought with inheritance money).

Bear in mind that if separate property is commingled with community property, it becomes community property. For example, an inheritance may be used to pay off a mortgage, or a business may be started prior to marriage and sustained through the marriage.

Property acquired or maintained through the use of a mixture of separate and community funds: If you acquire or maintain property through the use of a mixture of separate and community funds, a court is likely to determine that it is community property. If you wish to maintain your property’s separation, you must be diligent; otherwise, it will become commingled and converted to community property.

Who Gets the House in a Divorce?

Whoever inherits the house is determined by circumstance. If there are no children, the marital home is divided differently by the courts.

Although neither party has the legal authority to request the other’s departure, one partner can always make the request. That said, they may be breaking the law if they lock you out before the divorce is finalized and you retain ownership of the home. If they do, you may contact the authorities. The obvious exception is when one partner has been served with a restraining order due to domestic violence.

Caution: At times, unhappy relationships can be extremely toxic. Make certain that you are not fabricating domestic violence in order to evict the other partner. If the judge believes you’ve done so, you risk losing your right to marital property, including the house.

If you and your spouse are unable to agree on who gets the house, the court will decide based on its rules, state law, and the state’s property system.

When parents have children, the parent who is primarily responsible for child rearing typically retains the marital home.

If one partner paid for the house outright and there are no children, they can generally keep it and require the other to vacate.