The division of property is a crucial part of nearly every divorce. A couple’s assets and property often have emotional ties and are also important for financial stability. These factors can make property division more emotional and contentious than spouses may expect it to be. Understanding how your state divides property when your divorce goes to trial is important. A divorce and property division attorney can help you navigate the division of property.
Most states in the U.S. are considered either community property division or equitable distribution states, while some can have both systems. Understanding how these categories work is helpful to know how your state’s laws can affect you.
The Difference Between Marital and Separate Property
The concept of marital property and separate property is important for most states in a divorce. Many people will say that a spouse takes half of the property in a divorce, which is somewhat true but also a mischaracterization. The property that is split in a divorce is marital property. This means that in most states, only the property spouses have obtained while they are married is divided in a divorce.
Marital property is often called community property, but community property states are not the only states that have the concept of community property. Equitable division states also often have the concept of community property. The opposite of community or marital property is separate property. Separate property may be defined differently in different states but generally includes the property a spouse owned prior to being married and after legal separation.
It also includes specific assets obtained during a marriage, like gifts or inheritance given only to one spouse. The division of property in both community property and equitable distribution states usually only affects the property a couple gained during their marriage, with some exceptions. In nearly all states, spouses end the divorce, retaining all their separate assets.
What Is a Community Property State?
A community property state is where each spouse receives an equally valued half of the marital assets in a divorce. While not all assets are perfectly split, the goal is for each spouse to have a near-equal portion of the marital assets.
This division is equal regardless of each spouse’s unique financial circumstances, the length of the marriage, or any other factors. If the state allows fault-based grounds for divorce, this will not affect property division. While these factors are sometimes considered, they are not as important as in equitable distribution states.
What Is an Equitable Distribution State?
An equitable distribution state is where a spouse receives an equitable portion of marital assets in the divorce, which could be equal but often is not, depending on facts about their marriage. Based on the couple’s circumstances, the court will determine what a fair and just division of marital assets is. These exact factors depend on the state’s laws. Some of them may include:
- The economic circumstances of each spouse, including their income and the value of their separate assets
- Each spouse’s contributions to securing assets
- Each spouse’s contributions to maintaining assets, including homemaking
- Whether either spouse’s income was negatively affected because they were caring for children, the home, or supporting a spouse in their career
- Misconduct of either spouse that negatively affected the couple’s marital assets
The equitable division of marital property often takes much longer than community property division due to how much the court’s discretion is necessary for these decisions.
FAQs
Q: What Are the Major Differences Between Separate Property and Community Property?
A: Each state defines separate property and community property differently. However, in most states, the main difference between separate and marital property is that separate property is anything a spouse owns prior to marriage, and marital property is anything spouses gain during their marriage. You should speak with an experienced attorney in your state for further details.
Q: What Is the Difference Between Community Property States and Equitable Distribution States?
A: The difference between community property states and equitable distribution states is how the court divides a couple’s marital property. In community property states, the court divides the marital property equally, without regard to misconduct, economic circumstances, or any other factors about a couple’s marriage.
In equitable distribution states, the court divides marital property based on what it considers to be just and equitable. The exact factors the court uses can differ between states.
Q: What States Are Community Property States?
A: Some community property states include:
- Arizona
- California
- Louisiana
- Nevada
- Washington
- Texas
- Wisconsin
- Idaho
- New Mexico
Some of these do not exactly fit the definition of a community property state. Washington and Texas property division laws list factors for equitable and just distribution. This makes these states function similarly to equitable distribution states. Wisconsin, Idaho, and New Mexico presume equal distribution, but can rebut this presumption based on the factors of the marriage.
Q: Which Is Not an Example of Community Property?
A: Community property is property that spouses obtain during their marriage, although this definition varies from state to state. All non-marital property, also called separate property, includes assets and debts acquired prior to marriage.
Separate property also includes any gifts or inheritance that only one spouse receives at any point in their life, including during their marriage. Couples can also define certain assets and debts as separate through a marital agreement. Separate property can sometimes become marital property, intentionally or accidentally.
The Benefit of Working With an Attorney
While the state laws governing property division affect many couples getting a divorce, they are not always applicable. If a couple has an existing and valid prenuptial or postnuptial agreement, property can be divided the way it was outlined out in the agreement.
Couples can also choose to negotiate their divorce, such as by collaborative divorce or divorce mediation. When getting a divorce outside of court, spouses can make their own choices about the division of property and do not have to adhere to the state’s laws. The support of an attorney can help you navigate negotiations successfully and keep the case from continuing to court. When you need legal support, contact Stange Law Firm.
