Divorce Property Rights

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There are important divorce property rights awarded to both the parties while finalizing the divorce. These rights include right from the division of the property based on the age, earning capacity of the spouse and the duration of marriage to other important factors such as child support and alimony. The rights regarding property are dependent on whether the property is owned by a single person or it is in joint names. When the property is first attained, if there is any prenuptial or cohabiting agreement, then these also affect the rights.

When an individual is married and has at least one child residing in a property, this individual can secure the right to live in this property till the child is attending school. Irrespective of any situation, if the partner is trying to coerce the individual to move out of the residence, this individual must take the assistance of legal advice.

Divorce Property Rights in Equitable and Community States

Equitable Rights

  • 41 states observe equitable distribution of property
  • There is a fair distribution of assets and earnings accrued in marital life
  • In some states, the guilty divorcing partner is awarded less share of marital property
  • Usually, the high wage earner is offered about 66 percent of the property and the low wage earner is given 33 percent

Community Rights

  • The following states abide by this sort of rights
    • Wisconsin
    • Washington
    • Texas
    • New Mexico
    • Nevada
    • Louisiana
    • Idaho
    • California
    • Arizona
  • The property and earnings during marital life are divided in a 50:50 ratio
  • In some states, the divorcing partner, who is at fault, may be awarded less than 50 percent

Divorce Property Rights regarding Separate Property

The property that is labeled as Separate Property is not divided during divorce, but is retained by the divorcing partner, who owns it.

In community states, the divorcing spouse has the right to claim the following property types as separate property.

  • Property attained after separation
  • Inheritance procured by solely one spouse
  • Gifts made to only one spouse
  • Property attained in marital life from premarital earnings or from the proceeds of sale of premarital property
  • Compensation regarding personal injury
  • Property acquired through exchange of separate property
  • Property obtained prior to the moment of marriage

In equitable states, the following is classified as separate property.

  • Inheritances of only one spouse
  • Gifts made to solely one spouse
  • Compensation for personal injury
  • Property acquired by exchanging separate property
  • Property attained by a partner prior to marriage

Some tips regarding Property Division Rights

  • After dividing the property, the spouse must be able to continue the standard of life as was present in marital life. However, if the standard of living of the other spouse is enhanced due to success post divorce, this is not to be considered
  • The Uniform Marriage and Divorce Act has Section 307 that explains allocation of property and awarding alimony. It states that the contribution of a person as a homemaker of the family unit must be taken into account. The background of this rule is that a marriage is an economic partnership. In this partnership, one spouse may input income while the other may contribute services
  • If an individual is in dearth of skills to be self sufficient, then the spouse must offer assets and funds for training and rehabilitation
Divorce Property Rights:

There are certain specific rights awarded to each party in a divorce. These rights are as follows:

  • Right to Property - If a spouse is dependent on another spouse for day-to-day living, the dependent spouse is entitled to a specific percentage of share in the property to be able to afford the lifestyle they have been having while they were married.
  • Relief from Debts - An equitable distribution of debts is done so as not to burden one party with all the debt and installment payments. A partner's earning capacity is taken in to consideration while making this division. If it is utterly impossible for one partner to pay the debts, they are relieved from doing so.
  • Right to Financial Support - If a partner is dependent on another partner, he / she is entitled to financial support for the education or training required to secure a job or start an enterprise so that s/he can be economically self-sufficient.
  • Child Custody and Visitation - Right to child custody and visitation depends on the convenience of the parents and the wishes of the child. The parents' behavior is considered and their earning capacity is a major deciding factor.
  • Child Support - The breadwinner of the family usually has to bear the child support whereas, the custody can be given to any one of the parent, mostly the mother. The other parent has to scrape the child support if ordered so.
  • Alimony - An alimony or the spousal support is granted on the basis of age, education, earning history, earning capacity, health conditions and the behavior of the spouse. In some cases, a one time alimony is sought.
These are some basic property rights in divorce both the parties are entitled to. However, they may change according to the state laws. It is always safe to check with the state authorities before taking an action.

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