When a couple decides to divorce, one of their primary tasks is to divide
their property (both assets and liabilities).
The division of property can be a complex and contentious issue in a divorce.
If both parties agree, they can divide their property through negotiations
and submit their agreed division to the court for the court to approve.
If both parties cannot agree, the court will have to decide the property
division for them.
How does the court divide property?
Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas,
Washington, and Wisconsin (as well as Puerto Rico) are community property
states. In these states, the court will characterize all property as "community"
or "separate." Generally, each spouse keeps his or her separate
property (though not always in every state), while community property
is divided equitably between the spouses. Most often that means an equal
(50/50) division of community property but, again, not always.
In all other states, marital property is divided by equitable distribution-a
fair division of property. This does not necessarily mean equal division,
and non-marital property (property owned before the marriage) could possibly
be subject to division to achieve a fair and equitable distribution.
In most states, gifts, inheritances, assets owned before marriage, increases
in value of an asset owned before marriage, or items purchased with separate
property funds, are considered separate, or non-marital, property.
When your property is divided, the court will generally make an overall
division. It will not necessarily give each spouse a portion of each item
of property. For example, if you have multiple bank accounts, rather than
dividing each one, the court might award various accounts to your spouse
and various other accounts to you. The court will also generally not award
a piece of property that cannot be divided (such as a car) to both you
and your spouse. Instead, the court would award the car to one spouse
and offset its value by awarding another asset (or a larger share of another
asset) to the other spouse.
What factors will the court consider when it divides my property?
In most states, the court will consider a variety of factors when distributing property:
- The length of the marriage.
- The spouses' ages.
- Each partner's current and future income potential.
- Education disparities between spouses, and whether a spouse contributed
to the other's education.
- Whether one spouse has significant non-marital resources available (for
example, interest in a trust or large inheritance).
- Financial needs.
- Medical conditions (for example, conditions that prevent employment).
Previous agreements between the spouses (for example, a
- Whether the parties lived together prior to the marriage.
In most states, the court does not consider a spouse's bad behavior
(for example, a marital affair or abuse) when dividing property, although
there are exceptions, such as Texas. If a spouse has wasted marital assets,
though, a court may consider that spouse's conduct when dividing the
property. Depending on the circumstances, wasting marital assets could include:
- Problem gambling or drug use.
- Giving money away without your spouse's agreement.
- Spending money on extra-marital affairs.
- Spending lavishly on yourself after you have begun pursuing a divorce.
In most states, the court will also consider the tax consequences of awarding
property to one spouse or the other.
What happens to my property while I'm waiting for my divorce to be
You may be able to get a temporary order stating who can use your property
while you wait for your divorce to be finalized. For example, a temporary
order could allow you or your spouse to live in the family home or restrict
you or your spouse from accessing a joint savings account. Consult the
laws of your state to determine whether temporary relief is available to you.
Does the court's order change the title to my property?
After the court orders a distribution of your property, you and your spouse
may still need to change the actual title to the property. For example,
a home titled to both you and your spouse may need to be deeded to either
you or your spouse as an individual. In addition, a property that is financed
in both of your names may need to be refinanced so that only the person
who received the property in the divorce is responsible to the bank for the loan.
What if I decide later that the property division was wrong?
In most states, your ability to change a property division after the court
has signed your final orders is limited and changing the orders will be
difficult. However, there may be circumstances meriting a change to your
property division. For example, if you believe that the judge decided
your property division incorrectly, you may be able to appeal to the higher
court, although are time limits (30 days in most states). Also, if your
spouse committed fraud (intentionally lied) in order to get you to agree
to an unfair property division, or you were under duress (you were forced
to agree), you may be able to get a new division ordered. But it is difficult
to prove allegations like fraud and duress.
Consult the laws of your state or a qualified divorce attorney to determine
your options and deadlines relating to changing a property division.
Contact a McKinley Irvin family attorney for more information, or read
more about the
types of assets divided in a divorce or
dividing real estate in a divorce.
Please be advised that family law cases can be very complex and are different
for everyone, based on unique circumstances. The information provided
here should not be construed as legal advice in your case.
McKinley Irvin proudly serves Washington State and Oregon with offices
in Seattle, Bellevue, Tacoma, Puyallup, Vancouver and Portland.
Contact our family law offices to set up an appointment with a McKinley Irvin family attorney.