Property Division in Divorce Proceedings

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Divorce is basically a term given to a process that provides a legal termination of marriage between two individuals. The legal formalities associated with each divorce process greatly depend upon the circumstances between both the partners. There are several issues involved with every divorce case. Some of the general issues are child support or custody, property or debt distribution, alimony settlement and likewise. However, it is generally observed that the spouses seeking divorce decide to divide their property after proper analysis and discussion. If essential, they take the assistance of a neutral third party such as a mediator or financial advisor. However, if the above 2 steps fail, the last resort is to permit the court to resolve the issue related to property division. The court adheres to the state divorce laws to settle this dispute.

If any spouse opts to hide a property from the court with an objective to prevent it from getting divided, is considered as an illegal act. Instead, the court confirms that each spouse is allocated a specific percentage of the total valuation of the property. This may be in the form of assets, debts and personal property. This results into fair and justifiable property distribution between both the parties.

Principles of Property Division in Divorce Proceedings

The gross property of a married individual is classified into the following two types -

• Separate Property
• Marital Property

After the divorce, each spouse retains his/her separate property. The marital property is divided equally amongst the spouses i.e., in a 50:50 proportion. There are basically two major principles followed in most of the states in US. One is community property division and another is equitable property division method. Here we are providing a list of states that follow community property division -

• Puerto Rico
• Wisconsin
• Washington
• Texas
• New Mexico
• Nevada
• Louisiana
• Idaho
• California
• Arizona
• Alaska

Community property division

• The entire property is equally divided between both the spouses without considering any specific condition or circumstances of the marriage
• Community property includes all the property that is owned right from the start of the marriage till the spouses get permission of legal separation from the court house
• Few properties that are acquired as a gift or inherited from other family members will not be considered under the category of marital property. Hence, such property is not included in community property section

• The entire property (earnings and assets) that has been collected in marital life may or may not be equally distributed between both the individuals. This does not imply a 50:50 division
• In some cases, the judge may issue orders that one spouse should utilize his/her separate property in order to ascertain a fair and equitable property division
• All the states in the United States (except those mentioned under community property division) adhere to equitable property division

• Let us assume the following scenario
  • The residence is a separate property of one spouse
  • The couple does not have any children
  • The spouse who owns the residence as a separate property, even before the marriage, has the legal right to ask the other partner to leave the residence
• Let us consider the following condition
  • The couple has a child(ren)
  • One spouse offers the child(ren) primary care and spends most of the time with the child(ren). This spouse remains in the marital residence along with the child(ren)
• This third situation is rather tricky
  • The couple does not have a child(ren)
  • The couple owns the residence together. In such a case, none of these spouses posses the legal right to ask the other to leave. Either of the spouses may ask the other to leave, but cannot make it mandatory. If the spouses fail to resolve the issues between them, then the court plays a major role in making a fair decision. The spouses can also request for a temporary order regarding this property division issue
• Some people adopt the extreme method of claiming domestic violence simply to remove the other spouse from the residence. After the judge has been informed of this violence, the judge asks the spouse claiming violence to leave the residence. Hence, it is recommended that if a spouse believes him/her to be a victim of domestic violence, this spouse must call the local domestic violence hotline. At the same time, the court house do a definite inquiry and consider relevant evidences related to domestic violence before taking a final decision on divorce property division

Property division in divorce proceedings is considered as one of the crucial parts, which is to be solved after proper consideration of divorce laws and rights in the concerned state.

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