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

  • Deciding Where Possessions Go During a Divorce
    If divorcing couples are unable to agree on the distribution of their marital possessions, the court steps in and divides the property for them.
  • 6 Things to Do After Receiving Divorce Papers
    Sometimes divorce is finally filed after years of separation and is well anticipated. In other cases, it comes as a complete surprise to the person receiving paperwork. After receiving divorce papers, individuals must take immediate action to protect their legal rights and future.
  • Income Used to Calculate Child Support in Texas
    Child support in Texas is calculated based on pre-existing guidelines that take into consideration a number of factors to arrive at a fair child support amount. One factor used to determine the amount of child support is your income level. Several different types of income are used to calculate child support in Texas.
  • Getting Child Support from Someone Outside the Country
    While the United States recognizes the need for both parents to provide support to their children, other countries may not honor the child support orders that originate from the United States. Having a spouse who lives outside the country can make it more difficult to collect child support, there may be options available to the custodial parent.
  • Cohabitation under the New Alimony Statue: Whose Law Is it Anyway?
    By now most New Jersey residents are aware of the 2014 amendments to the NJ alimony statute, N.J.S.A. 2A:34-23.
  • Can I Extend Alimony?
    Alimony – or spousal support as it is called in many jurisdictions – helps provide monetary payments from one spouse to the other spouse after a divorce or separation. Its purpose is to support the spouse receiving the payments during a specified period of time, usually with the goal of this spouse becoming financially independent. However, sometimes the recipient spouse may not yet be financially independent and may wish to extend the duration of alimony payments.
  • Can I Get Palimony?
    Palimony derives its name from alimony that is paid to a person who was living with another person buy the two were not married to each other. It is similar to alimony, but the requirements to receive it may be heightened or not afforded in some jurisdictions.
  • Same-Sex Divorce Negates Woman’s Visitation Rights
    State laws prevailing over same-sex divorces are deficient, which creates a significant disadvantage regarding child visitation rights for same-sex couples who had children before they were legally married.
  • Grandparents’ Visitation Rights
    A recent Westmoreland County ruling could affect the way Pennsylvania courts handle visitation and custody rights of grandparents.
  • Proposed Law Would Shorten Divorce Waiting Period
    In Pennsylvania, there are three basic types of divorce. The first two are not based on fault, but rather on the premise that the marriage is irretrievably broken.

Contact a Lawyer

Find a Local Lawyer