Personal Property Rules
The laws governing the division of marital property and assets in a divorce for all 50 states are based on either community property division or equitable property division. Community property division attempts to divide all property and assets equally between spouses, while equitable distribution examines all assets, debts, resources, and future ramifications in order to divide property based on what is “fair and just” as opposed to simply “equal.” The community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. The rest of the country relies on equitable distribution for the most part.
Community property division states attempt to give each spouse half of the assets, although issues like pre-marital property and the value a spouse may have added to a property during the marriage can make things less clear. It is frequently difficult to assign a precise value on all assets and the fact that community property division can also vary among the nine states using it.
Equitable distribution of property is used by the remaining 41 states and looks at factors like the length of marriage, work history and job prospects, the physical and mental health of both parties, the source of assets, and expenses for any minor children. The formulas can be complicated and it is not easy to predict the final outcome in cases involving equitable distribution.
Before you begin a divorce action it is always best to familiarize yourself with the laws in your state to find out what to expect when you get to court. Every state has their own interpretation of the laws and you can check with the courthouse in your particular jurisdiction or talk to a local divorce attorney to see what the rules are in your area. You should also know these eight tips that apply to property division in general:
1. Property divisions created by both spouses in agreement are more likely to be upheld by the court.
2. Dividing personal property by prior mutual agreement without using an attorney will save money.
3. Both spouses should create their own inventories of personal property and household items.
4. Property division agreements based on reasonable needs of caring for children in the home are rarely overturned by the court.
5. Remember that the sentimental value of personal property is usually far more than its actual cash value.
6. Dividing inconsequential items by mutual agreement will cost far less than professional help in negotiating their division.
7. Personal property that originated as gifts from family members should be maintained by the spouse whose side of the family they originally came from.
8. Personal property in the form of gifts given between spouses should remain with the spouse to whom they were given.