Splitting the Property or Why Won’t I Get Half of Everything in My Divorce?

Aug 8, 2012 by

When a couple gets married they often assume their marriage will last forever. Few spouses familiarize themselves with state divorce laws before their wedding day, and if the marriage does end, there is usually a bit of confusion about who will receives what portion of the marital property. Unfortunately, divorce laws are not uniform. Each state has it’s own unique laws which have evolved as a result of foreign influences, political pressure, and religious traditions. The result is that marital property is not simply divided down the middle in most divorces.

In the United States there are two distinct methods of dividing property. Nine states are “community property” states, and the remaining states use a system of “equitable distribution.” In Alaska, couples can “opt-in” to a community property system.

In the 1800s, Spanish law allowed women to own property and sue if their property rights were infringed. Each spouse was considered equal in the marriage, and had legal rights to both separate property and marital property. Partly to encourage women to settle in the West, California and Texas adopted the Spanish community property laws. Arizona, Idaho, New Mexico, Nevada, and Washington each chose to adopt similar laws. Louisiana follows the community property laws found in the French civil code.

In community property states, courts award each spouse half of all assets and debts acquired during the marriage. Property acquired before marriage, or inherited during marriage, is considered the husband or wife’s separate property unless the couple made an agreement to share this property. Although this system sounds straightforward, problems arise when classifying property as community or separate.

Equitable distribution derived from English common law in which a wife’s identity was presumed to be merged into that of her husband. The husband had full control and management of all assets, even those owned by the wife prior to marriage. Originally, distribution in these states was not equitable at all since courts awarded the bulk of the assets to the higher wage earner – – usually, the husband. Over time, courts have taken a different approach. Before awarding assets, courts examine factors such as the husband or wife’s earning potential, the individual responsible for acquiring the marital assets, the value of the work one spouse performed in the home, the length of the marriage, the age of the spouses, and the expected cost of providing for the children.

Most states do not examine fault in the process and each state has its own variation of the general asset division systems. It is important to educate yourself about the laws concerning property division in your state before starting the divorce process.


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