Property Division

U.S. Divorce Law Center





Property Division Laws in the U.S. Copyright HG.org

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

  • Does Cheating Matter to the Judges
    We are asked everyday if cheating would make a difference in a divorce outcome. It rarely effects the legal side of divorce. Here is what you need to know.
  • Determining Custody of Children with Special Needs
    Divorce of parents is doubly difficult for children with special needs. Parents and the judicial system have to carefully plan to secure their future.
  • When is Mediation Necessary?
    Mediation is a form of alternative dispute resolution, that is, a mechanism for resolving matters outside of the courtroom. Mediation is becoming an increasingly popular form of resolution for divorce settlements, in particular because it involves settling differences between spouses in front of a private mediator, rather than the court system.
  • Public Opinion Of Child Support Laws
    A study released in June of 2015 found that people in England and the United States feel their respective child support laws are unfair.
  • Change of Circumstances or Good Cause Required to Revisit Custody Defined
    Divorce lawyer from Rochester, Michigan explains that a change of circumstances or good cause is required before the court may revisit custody
  • Dividing Real Property in Divorce
    The most valuable asset in many divorce cases is the marital home. The disposition of this asset can have a significant impact on the financial health of the parties after divorce. Additionally, special considerations must be given to other pieces of real property that the couple owns. There are several options in determining how to deal with real estate in a divorce case. However, there are certain steps that must be taken before considering what is the best solution.
  • Question and Answer: Liability of Debts
    Question: My wife and I are not currently living together. Is my wife legally responsible for the bills? The answer to this question depends on a number of factors, namely the state laws where you live and whether there are any agreements pertaining to debts accumulated during the marriage.
  • Who Is Legally Responsible for Bills When Spouses Are Not Living Together?
    When spouses are not living together, it can be difficult to determine which spouse is legally responsible to pay debts. The timing of when the debt was incurred, the nature of the debt and state law are important considerations in this assessment.
  • Where Goes the House in a Divorce?
    The home that the family lived in during the marriage is often the most valuable asset that a couple owns. Therefore, this asset may receive much attention during the divorce proceedings. What happens to a house after divorce depends on state laws, circumstances involving the house and the parties’ actions.
  • How Can a Private Investigator Help in My Divorce Case?
    Divorce is often a contentious experience in which formerly intimate spouses are now adversaries. With this dynamic, spouses may start to hide information or take part in activities that may threaten the well-being of the family. Private investigators are sometimes retained to assist in divorce cases for a number of reasons.

Find a Local Lawyer