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Details on State Marital Property Laws

Anything acquired by a married couple during the marriage may be community property or marital property. Marital property is anything that adds value to the marital estate. State marital property laws define exactly what is and is not community property in cases of divorce or legal separation.

Marital property and property rights are important if one spouse dies. The surviving spouse receives a percentage of the deceased spouse's separate and community property, depending on whether there is a will or any children. For information about wills and estate planning, visit FindLaw's section on Probate Law.

Marital property laws focus on the division of property during a divorce. Regardless of property division laws, which spouse receives what property can be a subject of bitter argument during a divorce. State laws create presumptive types of property used in divorce proceedings.

See FindLaw's Marriage, Money, and Property and Divorce and Property sections for additional articles, including Marriage Property Basics and Inheritance and Divorce.

Community Property vs. Separate Property

During a divorce, both marital assets and debts are marital property. Generally, property acquired before marriage is separate property, while anything obtained after the marriage date is community property.

Unless a couple is incredibly efficient and foresighted, the distinction between separate and community property is seldom that clear. Divorce laws recognize that both partners contribute to the value of marital property during marriage, whether the title is in both spouses' names or only one.

For instance, one spouse might own a house before marriage. The house would be their separate property. But the other spouse might spend time and money remodeling the home. In the event of a divorce, the spouse receives the value of the time and expense of improving the home.

Community property and equitable division laws recognize that ownership is only part of property value in a divorce. Different states use different types of laws to divide and distribute property during marital dissolution.

Community Property States

Community property states consider that all property acquired during marriage belongs to the community. During a divorce, the court divides the property equally between the parties unless one person can show they deserve a larger share or prove that it’s their own property separate from the community.

Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska allows couples to opt in to a community property agreement if they choose. Connecticut is an all-property state, with no separate property during marriage.

Community property laws require parties to divide all marital property 50/50 during a dissolution. The court has the property appraised and divides the total value in half. For instance, if the parties can’t agree on who gets the house, the judge will order them to sell it and split any profits.

If you live in a community property state, the best way to keep property separate is with a prenuptial agreement. The agreement specifies what property will belong to whom during a divorce. Couples should have their own bank accounts, with a joint account for household expenses.

Equitable Distribution

The remaining states are common-law states since their divorce laws are based on English common law. They use a system of equitable distribution for property distribution during divorce. This method considers each partner's contributions to the marriage and their needs after the divorce.

Courts attempt an "equal" distribution of assets in equitable distribution states, but there is less effort to divide everything 50/50. Some factors courts may consider during equitable distribution include:

  • Earning power of each spouse
  • Which party earned which property
  • How long the marriage lasted
  • Each party's non-monetary contributions to the marriage
  • Any special needs, such as lifelong medical care or assistance

Separate Property

A spouse's personal property acquired before the marriage is separate property. Separate property belongs to the spouse and is not divided during divorce. All states recognize separate property in some form. It can include:

  • Property acquired before marriage
  • Inheritances and bequests
  • Gifts
  • Personal injury settlements

Some kinds of separate property may be subject to marital property laws. That is, the property belongs to the spouse, but part of the value belongs to the community. This can include:

  • Pensions and retirement accounts that are vested before marriage but which the spouse maintained during the marriage. The other spouse receives a portion of the pension that accrued during the marriage. There is a separate court order, called a Qualified Domestic Relations Order (QDRO), for this purpose.
  • Business funds. If one spouse is a small business owner, the community may receive part of the assets or profits. If the owner-spouse used any part of the profits for household expenses or otherwise commingled business and community funds, the other spouse may receive some of the business value.

Prenuptial and Postnuptial Agreements

Many couples resort to marital agreements because of the possible confusion and litigation over property. A prenuptial agreement ("prenup") describes how the parties want to divide their property in the event of a divorce. Although all states allow couples to have prenups, most have strict rules about writing, signing, and filing them. Courts invalidate prenups that violate these terms.

A postnuptial agreement is a similar agreement written after the wedding. It is subject to the same rules as a prenup. Courts frown on any such agreement that tends to promote or encourage divorce. Anyone considering a prenup or postnuptial agreement to protect their property rights should get legal advice before writing one.

Get Legal Advice in Your State

Divorce is an emotional process for everyone. It’s also state-specific. Even if you and your spouse agree about your property division, discuss things with a divorce attorney in your state before finalizing any property distribution agreement.

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