Property Division

U.S. Divorce Law Center

Property Division Laws in the U.S. Copyright

Property Division

If both spouses in a divorce action cannot come to an agreement regarding property division, a judge will have to rule on this issue using state law as a guideline. As with all aspects of divorce law, these statutes also vary from state to state. 

Some states allow for the division of both separate and marital property upon divorce, but the origin of the property is taken into consideration when allocating the property. After distributing separate property, the judge then divides the marital property.

Separate Property

Non-marital property generally includes property that each spouse brings into the marriage, keeps in his/her own name and keeps separate from marital assets. It also includes gifts and inheritances to one spouse that are kept separate.

Marital Property

Marital or community property is defined differently from state to state, but generally describes property and earnings acquired during the marriage, with the exception of individual gifts and inheritances that are kept separate. This includes work income, real estate, furnishings, personal property and the like.

If an item of property is titled in only one spouse’s name, but was obtained during the marriage and was paid for with marital funds, it is still considered marital property. A pension earned during the marriage is usually considered marital property as well.

In community property states, marital property will be divided 50/50. In an equitable distribution states the court uses its discretion to divide the property as it deems valid, fair and equitable. Decisions are made on a case by case basis using various approved and accepted factors, giving weight to each factor as deemed fit.

Property Division Law by State

Property division in a divorce varies from state to state and is largely affected by whether or not the state is a community property state. The following links provide general overviews of individual states' property division laws.

Divorce Articles

  • Immigrant Abuse Laws in New Jersey
    There has been a history of abuse of immigrants who come [to the United States] to work.
  • What Is New Jersey’s Emancipation Law?
    The Emancipation of a child is when they no longer have support and control from either of their parents.
  • Disestablishment of Paternity: Reasons a Petition May Be Denied under Florida Family Law
    Disestablishment of paternity is a process that usually begins when the legal father of a child, who is paying child support, learns new information relating to the paternity of the child.
  • Prenuptial Agreements: Gaining a Financial Picture Before Marriage
    Everyone has their own financial personality. Your spending and saving habits may differ greatly from friends and family. According to a 2011 study from Utah State University, married couples who disagree about money issues once a week are twice as likely to divorce than couples who have money conflicts less than once a month.
  • Signs that Your Spouse May Be Hiding Property and Assets
    Some spouses may be tempted to hide assets during a divorce, so it is important for people to be aware of the warning signs.
  • Out of State Child Support Order
    In New Jersey if an order for child support payable through the New Jersey probation department, but is not being enforced because your ex lives out of state, you could seek to have child support enforced by the New Jersey probation department through the Uniform Interstate Family Support Act or (UIFSA).
  • Why Do I Need a QDRO in a Divorce?
    Protecting retirement assets from unnecessary loss during a divorce may require the use of a Qualified Domestic Relations Order.
  • Collaborative Law Offers a New, Amicable Way to Divorce in Texas
    The ways Americans can get divorced have increased nowadays. No longer is the norm a knock-down court battle, which in contentious divorces can leave the ex-spouses and their children distressed. An option now available is the collaborative law model.
  • Divorce Related Immigration Issues
    Divorce proceedings can affect one’s immigration status as well as one’s ability to continue to reside in the United States. In a situation where a person’s immigration status is dependent on or interlinked with marriage, things can get complicated soon enough and add stress to an already stressful situation.
  • Dividing Assets for Older Couples in Divorce
    Older couples may decide to get a divorce for some of the same reasons as younger people. However, they may also have unique considerations that are not as prominent in divorcing involving younger couples.

Find a Lawyer

Find a Local Lawyer