The 3 Most Important Property Division Factors


Divorce laws vary by state, and that includes the rules that govern property division. Therefore, there are no absolute property division answers that apply in every situation. Rather, there are multiple factors to consider. The most important of these are what property you own, where you live, and how you are divorcing.

1. What You Own

Community property is generally anything that you and your spouse acquire during the marriage. This can include large items like the house where you live or the contents of a joint checking account. It also applies to bills or debts. Separate property is generally anything that you acquired on your own before the marriage. Property that you acquire while married but is not titled in your spouse’s name may also be considered separate property, depending on where you live.

2. Where You Live

There are two different kinds of property division laws that can apply. Most states divide property according to the principle of equitable distribution. Generally speaking, property held in only one spouse’s name is considered separate property and therefore not subject to division. Property shared by both spouses is divided fairly, but this does not necessarily mean a 50-50 split. It is possible that, in the interest of fairness, one spouse may have to give up separate property to the other, but this is not done in all equitable property states.

A handful of states are community property states. In these states, your community property includes everything that you and your spouse acquired during the marriage, and it is typically split equally between the two of you. However, separate property still exists in community property states; it is anything you or your spouse acquired prior to the marriage.

3. How You Divorce

At the two extremes of the spectrum are contested divorce and uncontested divorce. A contested divorce is one that is litigated in court. A judge makes decisions regarding matters such as property division, and you and your spouse must abide by them. An uncontested divorce is one in which you and your spouse negotiate an agreement on your own outside of court. There are many other methods of alternative dispute resolution that fall along different points of the spectrum, such as arbitration and mediation that involve third parties but no trial and often only a perfunctory court appearance. Your method of divorce largely dictates how much control you and your spouse have over property division although you must still abide by applicable state laws.

A divorce lawyer in Fairfax, VA, such as from May Law, LLP, can explain how the divorce laws of your state apply to your situation as it relates to property division and related matters. Contact a law office for a consultation.