Property division following divorce is typically decided just as much by the state as by you and your soon-to-be ex. It’s critical to understand if you live in a community property state or an equitable distribution state.

Currently, only nine states fall into the community property category: Arizona, California, Indiana, Louisiana, Nebraska, New Mexico, Texas, Washington, and Wisconsin. So assets that are acquired during a marriage, referred to as marital assets, are considered joint assets and must be divided equally. Assets include property and income.

Marital assets owned by you and your spouse will need to be identified and categorized as marital or non-marital property. An example of the non-marital property would be any property purchased before the marriage or acquired during the marriage with separate money. Value will have be given to the assets, and then a plan for the division of those assets will be created in alignment with your state’s laws.

Sometimes this comes quickly. Sometimes, not so much. In my divorce, my ex-husband fought over every last thing right down to the vacuum cleaner. We didn’t even own anything of value! If there is disagreement about one or more items, you will need to explore some methods for fair division. One might be trading of items, such as where one spouse takes certain articles in exchange for others. For example, the wife may take one car and furniture in exchange for the husband getting the sports car.

Another method used in the division of property is to sell the marital property and divide the proceeds equally. Often, mediators or arbitrators may also be used. Arbitration is where I ended up—binding arbitration. If your situation is more civil, you can just take turns walking through the house and choosing what you each want. Take turns with your choices and document your decisions.

If you live in an equitable distribution state, the process is a bit different. Equitable distribution means that instead of requiring a 50/50 split of marital property, it takes into account the financial situation of each spouse. Equitable distribution is more flexible, but it is also harder to forecast the outcome, since there are so many factors taken into consideration during settlement negotiations. Factors considered in equitable distribution include:

  • The length of the marriage.
  • The age and physical and emotional health of the spouses.
  • The income or property brought to the marriage by each spouse.
  • The standard of living established during the marriage.
  • Any written agreement made by the spouses before or during the marriage concerning property distribution.
  • The economic situation of each spouse at the time the division of property becomes effective.
  • The income and earning potential of each spouse.
  • The contribution of each spouse to the education, training, or earning power of the other spouse.
  • The input of each spouse as to the acquisition of any marital property as well as the contribution of a spouse as a homemaker.
  • The tax consequences to each spouse.
  • The present value of any marital property.
  • The need for the custodial parent to remain in the marital home and keep possession of household effects.
  • The marital debts and liabilities and the ability of each spouse to pay those debts.
  • Any other factors the court may feel are relevant.

If you and your spouse can agree on how property and assets are to be split, equitable distribution laws will not apply to you.

If you can’t agree, a judge will decide how the property will be divided according to the factors above. Equitable distribution applies only to marital property.

Assets acquired separately during the marriage through gifts or inheritance aren’t considered. When deciding the value of marital property, fair market valuation will be used. The length of marriage, the age of the spouses, health, and earning ability are taken into consideration during the equitable distribution of marital property and assets.