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

  • Post-Nup: The After-Marriage Agreement
    Many couples are familiar with prenuptial agreements. The recent trend of post-nups has a lot of couples wondering what is a post-nup?
  • Can Divorce Papers Be Served Through Facebook?
    When one spouse files for divorce, proper legal service of divorce papers can be complicated when the address of the other spouse is unknown. Newspaper legal notices are the traditional service alternative in cases where the defendant spouse can't be located. But a new trend is emerging in which courts are permitting legal service on hard-to-find spouses through their potentially much easier-to-find Facebook accounts. Could starting the divorce process now be only a Facebook message away?
  • Same-Sex Family Law Matters
    Many New Jersey LGBTQ couples consider 2013 to be a landmark year. In that year, a key part of the Defense of Marriage Act (DOMA) was overturned, and New Jersey recognized the right for same-sex couples to marry.
  • Palimony in New Jersey after the Latest Challenge
    A July 22, 2016 decision in New Jersey Superior Court, Lee v. Kim (Bergen County FM-02-1745-16), upholds the constitutionality of New Jersey’s 2010 law requiring cohabitation agreements, also known as “palimony” agreements, to be in writing. The case also stands as a good example of exactly why written agreements are necessary.
  • Raising an Olympian when You Are a Divorced Parent: New Jersey Child Support Guidelines
    Kids involved in athletics—as well as some of their parents—might experience a burst of inspiration from the current Summer Olympics. If you are a separated or divorced parent and your child wants to step up training in their sport to reach Olympian levels, you may wonder about your financial responsibilities. Are you required to fund things like advanced training, private coaches, tournaments, and travel costs ? And is your child’s other parent obligated to share these costs?
  • Same-Sex Marriage Effects on Family Law
    The Supreme Court ruling making same-sex marriage a constitutional right was the beginning of new societal norms; however, many in the Lesbian Gay Bisexual Transgender (LGBT) community are still facing legal battles as state and local lawmakers hurry to address emerging legal issues. In just the first four months after the Supreme Court ruling, 96,000 same-sex couples were married.
  • Marital Home Purchased Before Marriage: How Is It Treated?
    When a person buys a home before he or she is married, this property is usually considered his or her own separate property. However, the other spouse may have a right to some of the home’s equity upon divorce despite this classification. Also, steps may have been taken so that the property is no longer considered separate and is now subject to division in the divorce action.
  • Summer Co-Parenting Tips
    In the eyes of a child, summertime stands for fun. Swimming, sleepover camp, long days, cool evenings, and vacation plans dominate their calendars. For children of divorced or separated parents, summer can be anything but fun if effective co-parenting skills fail. Those long days can become even longer when tension and disappointment fill the air.
  • Virginia Supreme Court Rules on Same-Sex Couples
    It has been common and expected that when a woman is receiving alimony payments from her ex-husband, he will no longer have to pay spousal support when she becomes engaged to another man. However, when that same woman instead becomes engaged to another woman, courts have ruled that the man must continue his spousal support payments in Virginia; that is, until a recent decision reversed this ruling.
  • In Florida, Can Alimony Be Modified Following the Final Dissolution of Marriage Judgment?
    Yes, in many instances in Florida post judgment alimony can be modified. There are, however a number of considerations. Alimony is money paid from one party in a dissolution of marriage to the other party.



Contact a Lawyer

Find a Local Lawyer