Many divorces occur because of arguments over money, and while many marriages are going through the resulting divorce, they often have ongoing conflicts over how to divide community property. The truth is, not all states have actual “community property” laws. Many mandate an equitable distribution of property between the couples. Both seek in some way to ensure that both parties receive their fair share of the property that belonged to both in the marriage. When couples cannot reach an agreement about property division on their own, they may require the intervention of a judge.
Division of Property
When a marriage dissolves and the partners cannot agree on how to divide their property, the court must divide it. The laws governing division of property in this country generally follow two different directives:
- Community property, which is in power in approximately 20% of the country, whereby the all property if the spouses is determined to be community property—owned or acquired by both parties during the marriage, or separate property—owned or acquired by one party before or during the marriage. Community property is divided equally in most of those states, although that does not necessarily mean equally in all states.
- Equitable distribution, which is in power in the remaining states, whereby all the property jointly acquired and owned in the marriage is divided fairly, or equitably, in the settlement. Separate property may be included in the divorce settlement if necessary to make the division of property equitable.
California is the only state that requires an absolute “50-50” division of property in a divorce settlement. All other states allow the judge to have some degree of leeway when a court solution is required, although how that settlement is allocated varies by state law. In general, even community property is often divided equitably, or fairly, to ensure an appropriate division of property.
In many states, the division of property may be slightly unequal, as well. The reasons such a skewed division of property may occur include:
- Any “fault” that may be attributed to one of the parties
- The education, skills, and earning capacity of the spouses
- The age and health of the spouses
- Any special needs the children may have
- The amount of separate property owned by either spouse
These decisions may be based on situations where one party has a well-paying job or profession that was achieved with the support of the other. Upon divorce, the supporting party has little earning power while the other party has a great deal. The court may order the party with high earning power to take less property from the divorce settlement than the supporting party, or may order the party with a high earning capacity to provide additional ongoing support to the other.
Getting Legal Help with Court-Ordered Division of Property
When there are disputes over property division in divorce, the court will order a detailed list of the age, health, skills, education, income, expenses, experience, and needs of each party. They will also ask each party to present their case for division of property, as well as possible support proposals. It may be advisable to not only have the guidance of an experienced divorce attorney to help compile those lists, but to present them thoroughly and effectively to the court in order to have a truly equitable division of property in the final divorce settlement.
