Property Division in Divorce

When couples get a divorce, many issues need to be resolved. Oftentimes, one of the most contentious subjects is property division. There are two main ways that marital property is divided during a divorce: equal division (technically known as "community property") and equitable distribution. Hiring a divorce lawyer may help you obtain a positive outcome in your case.

Community Property

There are currently nine states in the United States that observe community property division: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Community property describes all assets that were acquired during marriage, which are considered to result from the effort both spouses. Each spouse is seen as contributing equally, regardless of individual income, so community property is divided evenly. This means that each spouse receives one-half of these assets, which can include money, real estate, retirement plans, furniture, automobiles, possessions, and more. Community property does not include separate belongings that one spouse acquired with his or her own funds, inheritances, personal injury awards, or a business owned by the spouse before marriage.

Equitable Distribution

The property division procedure used under divorce law in most states is called equitable distribution. This method takes many factors into consideration before dividing the property and earnings accumulated during marriage. Some of the factors considered in equitable distribution of marital property include:

  • The financial situation each spouse will face following divorce
  • Relative earning power of each spouse
  • Any property spouses own separately
  • Work performed in acquiring marital property
  • Value contributed as homemaker
  • Fault of one spouse in squandering assets
  • Spousal misconduct leading to divorce
  • Providing for children
  • Length of marriage

In no-fault divorces, the spouse who contributed the most toward the accumulation of marital property is often awarded a larger share (although this may be mitigated if the other spouse retains custody of the children). In at-fault divorces, the spouse who was wronged may receive a greater portion of the assets as compensation. It is also important to remember that debts accumulated during marriage are subject to equitable distribution and community property.

Whether you live in a state that applies community property or equitable distribution, make sure you receive what you are entitled to under the law. It is a good idea to consult an experienced divorce attorney before dividing marital property.

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