Property Rights in Divorce

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Each couple seeking divorce has the right to reach a consensus regarding property distribution, and draft an agreement accordingly. For this, they are free to take the help of their lawyers. In case, a couple has drafted a property distribution agreement, the judge reviews it to ensure that it is fair enough. The court does not take into account any instances of marital misconduct while dividing the property.

Overview of Property Rights in Divorce

If the couple fails to reach an agreement regarding property division, the judge will use the rights to finalize this division. If it is a community state, the judge divides the property in a 50:50 proportion. In case of equitable states, there is no such set percentage for distribution.

The property of a married person undergoing divorce has to be categorized into 2 types - marital and non marital. Non marital property consists of the following 2 types of properties:

• The partner has received any inheritance or gift during marital life
• All properties acquired prior to the marital life

Marital property consists of the following. This is divided between the partners:

• Retirement or pension plans
• Real estate
• Securities
• Bank accounts
• Other property purchased in course of marriage

Factors affecting Property Rights in Divorce

When the judge has undertaken the task of property division, several factors are taken into consideration by the court. The presence or absence of these factors affects each partner's rights over the property. Some of these factors are as follows:

• The requirements, income, health and age of both partners
• If the property is divided in a specific manner, the tax consequences of each partner
• The duration of marital life
• If either partner had any previous marriage, are there any rights or obligations on either partner?
• Does any spouse have any probable chance of future attainment of assets or income?
• What is the child custody plan?
• The amount of non marital property of each spouse
• The input of each partner towards attainment and preservation of the property. This is inclusive of the input of a partner as a homemaker.

Community Property Rights

Equitable Rights

41 states observe equitable distribution of property in the U.S. 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.

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

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.

Separate Property Rights

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 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

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 meeting their day-to-day expenses, then 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 to not to burden one party with all the debt and installment payments. A partner's earning capacity is taken into consideration while making this division. This is generally considered if it is utterly impossible for one partner to pay the debts, whereas the other spouse is relieved from it.
• Right to Financial Support - If a partner is dependent on another partner, they are entitled to financial support for the education or training required to secure a job or start an enterprise so that they can be economically self-sufficient.

These are some basic property rights in divorce that 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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