It's the common divorce trope, from movies to rap songs, and maybe even the advice you got from your aunt: if you get a divorce, your spouse gets half of everything. And while that might be the intent of some divorce laws, it's a bit more complicated than that, and it's likely your divorce won't quite shake out that way.
What and how much each spouse will end up with in a divorce will vary depending on your state and the circumstances preceding the divorce. Here's a look at some state statutes and the factors that will determine property division in a divorce.
Community Property States
Nine states (Arizona, California, Louisiana, Idaho, Nevada, New Mexico, Texas, Washington, and Wisconsin) have what are known as community property laws, which divide marital property equally upon divorce. Marital property is generally defined as all income, property, and debts acquired during the marriage. That property is seen as owned equally by both spouses and will be distributed equally after the divorce, with a couple of caveats.
First, this doesn't apply to separate property, also known as non-marital property, normally defined as property owned by one spouse before the marriage or acquired by one spouse during the marriage through a gift or inheritance. Any assets you owned prior to your wedding day would remain yours after your wedding day.
Second, not all property can be split 50/50; houses, cars, furniture, and other physical possessions can't be cut in half. So parties or the court will decide how to divide these assets up as equally as possible, in some cases forcing the sale of an asset and having the exes split the proceeds.
So even in community property states, you won't lose half of everything you own — at most, you'll lose half of everything you and your spouse own.
Common Law or Equitable Distribution States
Most states use common law principles of equitable distribution when deciding who gets what following a divorce. This means that property acquired by one member of a married couple prior to marriage or as a gift or inheritance during the marriage remains their sole or non-marital property. Anything acquired by either party during the marriage is considered marital property unless addressed by a prenuptial agreement (also known as a prenup). This is true no matter whose name the asset is in (such as a retirement account or real estate).
If the parties can decide how they want to divide property they can enter into a divorce settlement agreement, which will then be approved by a court. This is the least expensive way for parties to figure out their divorce, but may still require legal advice from a divorce lawyer to make sure all issues are addressed.
If the parties can’t decide on the division of marital assets on their own, they will be forced to allow a court to make that decision during divorce proceedings. As part of a divorce case, both sides present evidence to the court about their assets, such as their marital home and bank accounts, their employment, their debts, such as credit card debt, any issues about custody of their children, or their need for spousal support. or child support
In some states, courts may consider fault in the divorce when allocating property and could also take things like the length of the marriage, income or earning disparities, age, health, or child custody issues into account when determining the division of assets. No matter the considerations the court will listen to the evidence and determine what it believes is the equitable division of property between the parties and how the division will happen.
In any case, you're probably not going to lose exactly half of everything you own, but family law cases are complicated so you may want the help of an experienced local divorce attorney who is familiar with the laws of your state to help you make sure.
Related Resources:
- In Divorce, Am I Entitled to Half of My Spouse's Retirement? (FindLaw's Law and Daily Life)
- Top 5 Marital Property Questions During a Divorce (FindLaw's Law and Daily Life)
- What is Equitable Distribution? (FindLaw's Learn About the Law)
