Property Distribution During Your Divorce

Posted on: 9 February 2023

If you are getting divorced, one of the first questions you will probably ask your divorce attorney is how you and your soon-to-be ex-spouse will divide your property. The more property and assets involved, the more difficult division may be. Unfortunately, if you cannot agree on your property division, a judge may decide it for you. Here are a few things that can happen when the court hears your case. 

50-50 Split

If you live in a community property state, you must split all of the property you acquired during your marriage equally. Community property states include the following:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

You and your spouse can designate certain things as community property in Alaska, Florida, Kentucky, and Tennessee. But in all community property states, the property does not just mean your home and other physical locations but includes your debts and financial assets.

There are also a few things not considered community property. Some of these items include:

  • Property covered under a prenuptial agreement
  • Property received by inheritance
  • Property acquired before the marriage
  • Property acquired after a legal separation
  • Debts acquired before marriage

There are exceptions to this, as some properties that you would not typically consider community property may become community property depending on how you handled it during the marriage. 

For example, if you owned a beach house before marriage but remortgaged it during the marriage and you paid the mortgage with joint funds, it may now be viewed as community property. 

You Keep Yours, And They Keep Theirs

Most states not listed above award property based on common law rules. Under common law property rules, the property belongs to the person listed on the deed, title, or registration.

There is no joint property unless the ownership documents list you both. The court may also refer to this as marital property. 

In marital property cases, the court will attempt to divide your property using equitable distribution, or in a manner they deem fair to both parties. Just know that equitable distribution does not always mean equal distribution and may appear unbalanced.

There can be exceptions to this during your divorce. For example, you may have purchased a vehicle for your spouse during your marriage, financed it in your name, and paid the note. But your spouse has driven it exclusively for the last few years. The court may rule that this is her property and may or may not order you to continue paying the note. 

Speak to a lawyer such as Gomez May LLP to learn more.