Dividing Marital or Community Property
A few states, such as California, take a rather simple approach. Lawmakers in those states believe property should be divided equally because they view marriage as a joint undertaking in which both spouses are presumed to contribute equally to the acquisition and preservation of property. The contributions may be different in nature, but they are treated equally. The wage earner does not receive more property than the homemaker, and vice versa. All marital property will be divided fifty-fifty, unless the husband and wife had a premarital agreement stating otherwise.
The California community property approach saves resources. Husbands and wives do not have to spend time and money arguing about who should get more property since the law of that state already has determined that community property will be divided fifty-fifty. (In California, there still may be issues to dispute, such as: What is and what is not community property? What is the value of a particular piece of community property? For example, if an actress divorces mid-way in production of a film, how does one value her interest in the film?)
Although California may save resources by declaring an automatic fifty-fifty split, it deprives courts of the opportunity to fine-tune property divisions to meet the needs of individual cases. In several other community property states and in all equitable distribution states, courts are allowed to fine-tune property divisions. (That may or may not be an advantage, depending on the cost of fighting over what is "equitable" and one's faith in judges to make fair decisions regarding property.)
"Equitable distribution" means a court divides marital property as it thinks is fair. Like community property states, states applying principles of equitable distribution view marriage as a shared enterprise in which both spouses usually contribute significantly to the acquisition and preservation of property. Unlike the community property approach of California, however, equitable distribution states are not locked into a fifty-fifty split. The division of property could be fifty-fifty, sixty-forty, seventy-thirty, or even all for one spouse and nothing for the other (although that would be very unusual). Under equitable distribution, courts consider a variety of factors and need not weigh the factors equally. That permits more flexibility and more attention to the financial situation of both spouses after the divorce. However, it also makes the resolution of property issues less predictable.
Page 1 of 3
Next Page
Guide to Family Law
Copyright © 1996, 2000 American Bar Association
