Divorce Property Division FAQ

How is property and debt divided in case of a divorce?

The best way to deal with the issue of property and debt division in the event of a divorce is to deal with it amongst yourselves rather than leaving it to the court to decide who gets what and who pays what. Dealing with the division of property and debt amongst yourselves is only possible if you are parting on amicable terms. Most couple are not on talking terms at the time of divorce. The state law will determine who gets what and who pays what. Generally, there are two types of states: community property states and equitable distribution states.

Community property states – are Alaska, California, Arizona, Idaho, Nevada, Louisiana, Texas, New Mexico, Wisconsin and Washington. Puerto Rico allows follow community property law principles. In these states, the property acquired during the marriage is considered as community or property and are divided equally between the spouses in the event of a divorce. The separate properties belong to the respective spouses.

Equitable distribution states – The remaining states generally follow equitable distribution. The judge will divide the property in a fair and equitable manner instead of dividing it equally. In these states, the higher earning spouse will generally get a higher share in the property. The court does not physically divide the property. Instead it will determine the value of the asset and award a percentage to each spouse.

Is there a difference between community and non-community property?

Yes. However the exact differences will depend on state law. Here are some of the basic differences:

Community property – Community property refers to all the property acquired during the marriage. This include debts also. However the property or debt can be classified otherwise such as a loan availed by one spouse using his or her separate property.

Separate or non-community property – These are properties acquired prior to the marriage and includes pension proceeds, inheritance, court awards and gifts. Some separate property can become community property. For example if the spouse contributes to the maintenance of a separate property, the separate property will be considered as community property.

Co-mingling – If you mix community and separate property, the court will consider it as a community property in most cases. Do not mix the properties if you want to keep your separate property separate from the community property.

What happens to the family home?

The circumstances of your case will determine what happens to your family home. If there are children from the marriage, the spouse who did majority of the work when it came to raising the children will generally get to keep the family home. If there are no children and the house was purchased by one spouse using separate funds, then that spouse can retain the home and ask the other spouse to vacate. Courts generally vary on how they treat the marital home in the absence of children. Generally, no spouse has the legal right to ask the other to vacate but can also request the other spouse to do so. If the spouse refuses to vacate, then the court will determine who gets the house based on the state law.

It is illegal for a spouse to lock the other out. The locked out spouse can call the police. However in case of domestic violence, the victim spouse can lock the abuser spouse. If you are a victim of domestic violence, please contact a domestic violence hotline. Making false allegations of domestic violence can adversely affect your property rights in a divorce.

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