Understanding The Division Of Property During Divorce

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Dividing up property is one of the main reasons to talk with a divorce attorney as you head toward the end of your marriage. Each state has its own processes, but most systems fall into one of two categories: common law and community property. Let's examine what the implications are and how each works.

Common Law

In a common-law system, all assets acquired during the marriage by one person are considered theirs unless there is evidence to the contrary. For example, if you purchased a vehicle with credit in your name and the title has your name, a common-law state would say the vehicle was yours.

The flip side of the equation would be something like a joint checking account. Suppose a couple had an account that was set up so both of them could sign checks. In that scenario, the funds in the account would be considered marital property and have to be split equitably.

Community Property

9 U.S. states employ the community property system, and Alaska allows couples to "opt in" to using the community property standard. Notably, two of the biggest states, Texas and California, are community property states, so a lot of Americans are governed by this system even though fewer states use it.

In these states, the reverse assumption is made about property acquired during the marriage. Unless there is evidence to the contrary, all property is assumed to be marital property held jointly between the two people. There are several exceptions for things like the proceeds of injury settlements, inheritances, some types of gifts and, oddly enough, money earned in a common-law state.


In most states, property is distributed equitably. This is not the same as equal distribution. Instead, equitable distribution focuses on providing a fair portion of the marital property to each spouse. For example, one might have medical issues, and the court may find it equitable to give them more of the property to take care of their needs. However, some states tend toward equal distribution, splitting jointly held property 50-50.


One of the stronger pieces of evidence to the contrary regarding property distribution is a pre-marital agreement. By overtly assigning certain money and properties to each partner, these agreements are designed to protect the signers' interests.

You can, if you want, enter into a divorce agreement, too. Rather than depending on the court to sort things you, you and your ex can simply sign off on a different distribution.

To learn more, contact a divorce attorney.

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