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Getting divorced involves a lot of financial decisions. The property, including real estate, stocks, personal property, bank accounts and other things, needs to be divided. Sometimes the couple getting divorced can work out an equitable arrangement themselves. If this is the case then the judge granting the divorce usually signs off on their agreement.
However, getting divorced is not always so simple. It is often contentious and the parties are not able to come to an agreement concerning the division of their property. In most divorces, the court is forced to divide the property for the couple.
How the property will be divided is, in part, dependent upon whether the governing state law is a "community property" state or an "equitable distribution" state. Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico are community property states. The rest of the states are considered equitable distribution states.
Courts in these jurisdictions divide property owned by the couple into two categories. One category is the property that is jointly owned by the couple, or the community property, and the other category is the property owned by each spouse individually, or the separate property. Community property includes money that was earned during the marriage and the possessions acquired with any of those earnings. Separate property includes any gifts or inheritances given just to one spouse even if the gift or inheritance was acquired during the marriage. Courts usually divide the community property equally between the two spouses and allow each spouse to keep his or her separate property without division, though there are some exceptions. Also, it is important to note that if a couple mixed separate and community funds to make a purchase, for example a house, then the courts may consider the purchase to have been made with community property for purposes of distribution in a divorce proceeding.
The remaining states are not community property states and instead base property division on the principle of equitable distribution. The assets and money acquired during the marriage, by both spouses, is divided fairly, although not always equally.
This is one of the biggest issues surrounding the division of property in many divorce proceedings. If the house was purchased together by the spouses and the couple cannot agree on which spouse should leave the home, then the judge will decide the issue. Sometimes the judge will require that the house be sold and the profits split between the parties. Other times the judge will require one spouse to buy out the other spouse's interest in the house or the judge can award the house to one spouse and property of equal value (cars, jewelry, personal property, money) to the other spouse. Usually, if the couple has children then the judge lets the spouse who is the primary caregiver remain in the house with the children and the other spouse is entitled to other property. However, if the house was purchased by just one spouse then that spouse usually gets to keep the house in a divorce proceeding.
It is difficult to divide property during a divorce. However, the laws are in place to help couples, their attorneys and the judge divide the property as equitably as possible.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified divorce lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local divorce attorney to discuss your specific legal situation.