Divorce Property Division FAQ

 

When a couple gets divorced, one of the main concerns apart from children is what to do with the property (and debts) shared by the couple. Who gets the house? Who gets the dog? The answer depends on a number of factors, including the laws of the state in which the divorce is filed.

Below are answers to some of the most frequently asked questions about property division after a divorce.

What happens to our property and debt if we get divorced?

The easiest way to deal with property during a divorce is to decide how to divide it up amongst yourselves. But because most divorcing couples aren't able to amicably decide how to deal with these issues, however, the matter usually ends up in court.

There are two general ways property division is handled, depending on state law:

  • Community Property: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states (as is the U.S. territory of Puerto Rico). This means that all marital property is typically defined as community property or separate property. When divorcing, community property is typically divided evenly, and separate property is kept by its owner.
  • Equitable Distribution: All other states typically follow equitable distribution. This means that a judge decides what is equitable, or fair, rather than simply splitting the property in two. In practice, this may mean that two-thirds of the property goes to the higher earning spouse, with the other spouse getting one-third.

Note that when courts divide property, that doesn't necessarily mean the property is literally (physically) split. A court will usually add up the total value of the marital estate and grant each spouse a percentage.

What's the difference between community and non-community property?

This varies from state to state, but here are the basics:

  • Community property : This includes all property accumulated during marriage, including debts, unless the property or debt is designated otherwise (e.g., a loan made out specifically to one person based on their separate property).
  • Separate property : This can include property acquired before the marriage, gifts, court awards, inheritance, and pension proceeds. Also, property acquired with separate property remains separate property (e.g., a boat bought with inheritance money). Be aware, however, that some separate property items may become community property, such as a business started before marriage but sustained by the marriage (this type of situation is usually referred to as commingled property).
  • Property purchased with commingled funds : If you purchase or maintain items with a mixture of separate and community property, it's likely that a court will decide it's community property. If you want to keep your property separate, you need to work to keep it completely separate, otherwise it will become commingled and converted to community property.

Property Division: Who gets the house?

It depends on the circumstances. For instance, if you have children, then the parent who does the majority of the child-raising generally keeps the marital home. If one partner purchased the house with separate funds and there are no children, then they can keep it and legally require the other partner to vacate.

If there are no children involved, then courts vary considerably on how they distribute the marital home. Neither party typically has a legal right to ask the other to leave, but one partner can always request it. If you and your spouse can't agree, the court will decide based on the rules in its state and which kind of property system your state has.

Because spouses typically don't have the right to prevent the other from living in the home, it may be illegal for them to lock you out, and you can call the police. The obvious exception to this is in cases of domestic violence. If this is the case, immediately seek a restraining order and contact a domestic violence hotline.

Sometimes relationships can become very toxic, so be careful not to allege domestic violence out of spite just to get the other partner out of the house. If the judge believes you've done this, then you can seriously jeopardize your rights to marital property, including ownership the house.

Learn More About Divorce Property Division by Talking to an Attorney

Given the circumstances, spouses don't always handle divorces in a civil manner after a breakup which is why they often require a judge to help divide up marital assets like homes or cars. If you're getting divorced and need help with dividing your property, whether in or out of court, you may want to consult with a skilled divorce lawyer to advocate on your behalf.

Next Steps

Contact a qualified divorce attorney to make sure your rights are protected.

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