Division of Property in a Divorce

How Property is Divided Between Spouses Going Through a Divorce

The division of property can be one of the most confounding aspects of any divorce. However, regardless of this, property that has been acquired during a marriage must be dealt with and disposed of when parties separate and ultimately divorce. Obviously, if the parties can agree upon a division, they are quite far ahead of the game and the process can be straightforward when an agreement is reduced to writing.  Yet, such is not always the case.  Many times, bitter disputes break out over not only who will receive the property, but what property should even be included in the equation.  Though there will be variations of the specific laws from state to state, there are a number of general laws that apply to the division of property in a divorce.  These general principles will likely come into play when property issues are being negotiated by attorneys or when the matter is being addressed in some alternative dispute resolution setting. 

To understand how property is viewed in a domestic setting, there are two general approaches that are used, depending on the state in which you live or in which you divorce may be pending.  These are the community property approach and the non-community property approach, though in some states, the non-community property approach is referred to as the “division of marital property,” “equitable division” or some derivative thereof. 

In states that use the community property approach, all property acquired during the marriage is either community property or the separate property of one spouse.  Community property is divided equally between the spouses, regardless of how the property was acquired, the parties’ individual contributions to the acquisition of the property, how the property was used by the parties or how the property may be titled.  In short, in community property states, if the property came into existence during the marriage, it is shared equally by the parties with few exceptions.