Home > Law

Let us help you locate an attorney. Use the form below to find a divorce attorney in your area.

Division of Property

When entering into a divorce, both parties are usually concerned about the division of property. Sometimes divorcing couples are able to negotiate the division of property themselves. However, this is not always possible. If the divorce is contentious, which is often the case, state specified divorce laws determine the division of property. It is always wise to seek the counsel of a qualified divorce attorney when it comes to divorce law and the division of property.

Community Property vs. Equitable Distribution

Marital property generally refers to the property and income acquired during a marriage and the debt incurred. A few states have community property laws, which regard marriage as a joint undertaking and thus divide marital property equally. Since both spouses are considered equal contributors with regard to the acquisition and preservation of property, each spouse is entitled to half of the marital property . Under community property, the fifty-fifty rule applies except when the couple had a prenuptial agreement identifying separate , or non-marital, property.

Most states, however, have equitable distribution laws , which allow courts more flexibility in fine-tuning property division to meet the needs of individual cases. Thus, equitable distribution does not mean equal distribution so much as it means fair distribution . States applying principles of equitable distribution, like community property states, regard marriage as a joint endeavor in which each spouse makes a unique contribution.

Under equitable distribution, however, courts are not restricted by the fifty-fifty rule and may determine the distribution of property based on a variety of factors. Moreover, they need not weigh these factors equally. Depending on the factors involved in each case, the division of property could be a forty-sixty split, a seventy-thirty split, or some other determined percentage.

Some factors that courts may consider in states with equitable distribution laws are:

  • Non-marital property Generally, non-marital property refers to the property each spouse owned prior to the marriage or acquired individually as a gift or inheritance.
  • Income and earning power
  • Who earned the property
  • Value of homemaking and other non-income based marital contributions
  • Economic fault (contribution to marital debt) For example, money wasted by a spouse due to gambling losses may be considered an economic fault.
  • Non-economic fault Marital infidelity is an example of non-economic fault. However, determining fault is no longer necessary to obtain a divorce and is rarely considered a factor during property division, except in some states.
  • Length of marriage
  • Age and health of each party
  • Tax consequences
  • Premarital agreements

While community property makes the division of property easier, lawmakers regard equitable distribution more fair even if more difficult and less predictable.

If you are considering or are in the process of divorce and you are concerned about division of property, an experienced divorce attorney can help you understand the law and protect your rights. Contact us to speak with a qualified and experienced divorce lawyer near you – FREE of charge.

More information on law:

Hawaii Alaska California Washington Oregon Nevada Idaho Montana Wyoming Utah Arizona New Hampshire Massachusetts Rhode Island Connecticut New Jersey Delaware Maryland Washington DC Colorado North Dakota South Dakota Nebraska Kansas New Mexico Texas Okalahoma Minnesota Iowa Missouri Arkansas Louisiana Wisconsin Illinois Indiana Michigan Ohio Florida Mississippi Alabama Georgia Kentucky Tennessee South Carolina North Carolina Virginia West Virginia Pennsylvania New York vermont Maine