Divorce Property Division FAQ

When a couple gets divorced, one of their main concerns, apart from child custody, is what to do with shared property. Who gets the house? Who gets the dog? The answer depends on the laws of the state in which the divorce is filed and the ability of the spouses to reach an agreement.

This article answers some of the most frequently asked questions about property division during divorce.

What Happens to Our Property and Debt if We Get Divorced?

The easiest way to deal with property during a divorce is to decide between yourselves how to divide it. When divorcing couples cannot amicably decide how to divide marital property, the question may go before a judge in family court.

There are two general ways property division is handled under state law:

• Community Property: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states, as is the U.S. territory of Puerto Rico. This means that property acquired during the marriage is community property (although there can be exceptions). During a divorce, community property is typically divided evenly and separate property is kept by its owner.
• Equitable Distribution: All other states typically follow equitable distribution. A judge (or the couple themselves) will decide what is equitable, or fair, rather than simply splitting the value of the property in two. In practice, this may even mean that two-thirds of the property goes to the higher-earning spouse, with the other spouse getting only one-third.

Note that when courts divide property, that doesn't mean the property is literally (or physically) split. A court will add up the total value of the marital estate and grant each spouse a percentage. How each spouse secures that amount may mean selling the house or transferring part of an IRA or buying out a spouse's interest in a company. These are the details of property division that a divorce attorney helps you determine.

What's the Difference Between Community and Non-Community Property?

Community Property: This generally includes all property, assets, and debt accumulated during the marriage, unless the property or debt is designated otherwise. For example, a loan may have been taken out specifically for one person. It may be their separate debt.

Separate Property: This can include property acquired before the marriage, as well as gifts, court awards, inheritance, and pension proceeds obtained during the marriage. Property acquired with separate property remains separate property (e.g., a boat bought with inheritance money).

Be aware that separate property can become community property if it is commingled. For example, an inheritance used to pay down a home mortgage, or a business owned before marriage that is sustained by the marriage.

Property purchased with commingled funds: If you purchase or maintain items with a mixture of separate and community property, it's likely that a court will decide it's community property. If you want to keep your property separate, you need to work to keep it completely separate, otherwise it will become commingled and converted to community property

Property Division: Who Gets the House?

Who gets the house depends on the circumstances. If there are no children, then courts vary considerably on how they distribute the marital home.

Neither party typically has a legal right to demand the other to leave, but one partner can always request it. That said, it may be illegal for them to lock you out before the divorce is finalized, while you still own the home. You can call the police if they do so. The obvious exception to this is in cases of domestic violence where one partner has received a restraining order against the other.

Caution: Sometimes unhappy relationships can become very toxic. Be careful not to allege domestic violence out of spite just to get the other partner out of the house. If the judge believes you've done this, you could jeopardize your right to marital property, including ownership of the house.

If you and your spouse can't agree on who gets the home, the court will decide based on its rules, state law, and which kind of property system your state has.

If you have children, then the parent who does the majority of the child-raising generally keeps the marital home.

If one partner purchased the house with separate funds and there are no children, then generally they keep it and can require the other partner to vacate.

Learn More About Divorce Property Division by Talking to an Attorney

If you're getting divorced and need help dividing marital property, whether in or out of court, talk to a skilled local divorce lawyer who can advocate on your behalf.