If you’re getting a divorce, you might believe that your marital property is going to have to be divided 50/50 with your soon to be ex. However, that’s not always the case.
A lot of people facing a divorce have a lot of concerns. If there are children involved, they’ll probably be the biggest one. But right behind are going to be questions concerning money and property. Many people presume that everything has to be split equally with their soon to be ex. That’s usually what happens—but not every time. Actually, the laws in most of the US allow judges to distribute spouses’ property unequally in divorce, provided that the division is fair.
Property Division Fundamentals
In each divorce, spouses property and liabilities must be divided between them. But each spouse is going to keep their own separate property, and they are going to be responsible for their own separate liabilities.
The regulations in your state are going to mostly establish how your marital property is going to be split in your divorce. The specific situation concerning your marriage and finances may also have a role, provided state law enables that. And even when your state requires a 50/50 division, you both may agree on an alternative way of dividing the property. Although a judge is going to need to review your settlement agreement prior to granting a divorce, judges usually authorize property agreements unless they’re clearly unfair.
Even in many community property states, judges might divide a couple’s property unfairly.
State Regulations Concerning Property Division
Primarily, states have 2 different strategies concerning the ownership and the dividing of marital property: equitable division or community property.
Equitable Division States: Dividing Property Justly
In a lot of states, the regulations concerning marital property and divorce utilize what is referred to as the “equitable division” regulation. But don’t forget that equitable does not always mean equal. Rather, judges must take into account the specific situation in each divorce prior to deciding on a fair way to divide the couple’s assets and liabilities.
Community Property States: Fifty/ fifty Ownership
In 9 states in the U.S., the regulations usually presume that both spouses have equal (fifty/ fifty) ownership and supervision of any property that either one of them has, obtains, or amasses throughout their marriage—unless that property is considered as separate property.
Typically, meaning the judge is going to split the community property 50/50 between the spouses after they get divorced. However, even in some community property states, judges might split a divorcing couple’s assets unevenly. For instance:
- In California and Nevada, judges are required to split a couple’s community property 50/50, but Nevada law enables a narrow exemption when an equal split is not reasonable. (Cal. Fam. Code § 2550; Nev. Rev. Stat. § 125.150 (2022).)
- In the state of Texas, judges are just required to split spouses’ community property in a way that is “just and proper.” (Tex. Fam. Code § 7.001 (2022).)
- Although Washington is a community property state, its requirements for splitting community property through divorce are likewise to those in states that adhere to the equitable division regulation. Judges must allocate the spouses’ property and liabilities in an “equitable and just ” way after taking into consideration “all relevant aspects,” including the duration of the marriage, the parties’ economic situation, and if a spouse that has primary physical custody of the children, if they should retain the family home. (Wash. Rev. Code § 26.09.080 (2022).)
Justifying an Unequal Property Division in Your Divorce
Although the laws in a lot of states don’t require a fifty/ fifty property division in divorce, judges usually prefer a roughly equal split in most cases. In practical terms, it’s usually easier to see that it’s just when each spouse backs away from their marriage with about equal to the amount of marital assets (not including debts).
So, when you’re arguing for a different outcome in your divorce, you are going to need to provide evidence that your suggested property split would be equitable due to particular financial and other circumstances in the marriage. And when you are going to court, you are going to almost certainly require a divorce lawyer to help collect that evidence and make that argument in front of a judge.
But even when you’re wanting to come to a property agreement with your spouse, you are going to be in a more powerful negotiating position if you know what a judge may decide in the event that you both cannot resolve your issues. Meaning understanding the regulations in your state and the aspect judges needs to consider when cases go to litigation. Learn more
E.A. Gjelten, L. E. (2022, June 16). Are assets split 50/50 in a divorce? www.nolo.com. Retrieved August 15, 2022, from https://www.nolo.com/legal-encyclopedia/dividing-property-during-divorce-30024.html
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