Find Legal Topics > Divorce Laws > Property Division in Divorce

Property Division in Divorce

Guide to Property Division in Divorce

Property Division in Divorce

If you and your spouse are entering an uncontested divorce without representation, you will usually reach a settlement for property division outside of divorce.  However, if the case is contested and there is a disagreement about the property division in divorce, there are a number of factors a court may consider.  

Each state’s laws are different about property division in divorces, so it’s often imperative that you hire a lawyer if you believe there is any discrepancy in property division.  

What is considered martial property defined? 

Each state is different, but marital property is usually defined as any property that was acquired by either party during a marriage.  This property is defined as joint gifts, real estate, income within joint accounts, pensions awarded during the marriage, or similar types of income and finances.  You should talk with your attorney to decide what property you can put aside that won’t be included in the property division.  

What are factors within the marriage for determining property division?

Again, the factors for property division in divorce are different from state to state.  You can find these codes on the website your state’s judicial branch, but you should really ask your lawyer what factors will be included in your specific case.  Some of the general factors for property division in divorce include:

• The length of the marriage

• Any prior marriages of either spouse 

• The age and health of each spouse

• Each spouses amount and source of income, vocational skills, employment potential, liabilities, and medical needs for a physical or mental condition

• The contribution from one party to the other party’s education, professional training, or increased income

• Each party’s medical, retirement, and other insurance benefits

• Each party’s contribution as a homemaker and improvements around the home

• The standard of living for each spouse during the marriage

• The federal, state, and local tax consequences for each spouse once the divorce becomes final

• Each party’s rights as a custodial or non-custodial parent, and whether or not those parties are receiving child and/or spousal support

What are different kinds of property division?

A state may either allow or not allow two different kinds of property division in divorce proceedings.  The two general types of property division are as follows:

1) Equitable Distribution- this type of distribution is most common, and the martial property is considered to be a piece of property that each spouse contributes to.  This type of division is called equitable, but the division doesn’t always give equal property to each spouse.  

2) Community Property Distribution- states that have laws for community property state that all joint marital property is subject to division, but all other property is not allowed to undergo distribution.  

How do I file for Property Division in Divorce?

You cannot technically file for property division in divorce proceedings.  You will have to file a Financial Affidavit or similar document and any other request for child support and spousal support.  A judge will then declare how the property is to be split up, and the property will go to the proper receiver after the divorce decree.  

Related Topics