U.S. Divorce Law Center - 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.

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 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 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.