Understanding Property Division During a Divorce

by LegalFix
Posted: January 5, 2023

When it comes to settling a divorce, property division may sound simple in theory, but it can be complicated in practice. Rather than splitting all assets equally, spouses often try to argue that they deserve more than their partner for a number of reasons. Just like with child custody, each party usually brings a lawyer to negotiate their side of the property division process. 

How Is Property Division Decided?

While each state has different laws around divorce, generally, courts start with the assumption that each partner will take their own personal belongings (acquired before marriage or by gift or inheritance) and any jointly-owned property will be divided between them. Money in individually-held bank accounts opened before marriage is generally presumed to be the separate property of the person whose name the account is in—unless money earned by one or both spouses during the marriage is added to or commingled in the account.   

Property or other assets that are legally owned by both partners (referred to as “community property” in some states, including Washington, Texas, and California) are considered distinct from personally-held assets (separate property). In the absence of prenuptial agreements specifying otherwise, a court will often look to divide these community or marital properties evenly between the partners.

Although a 50/50 division of property may be the default, each partner can (with the assistance of a lawyer) argue that they are entitled to more than half of the couple’s community property. Other considerations may play into a decision as well. For example, if there are minor children involved, many states will take steps to allow them to stay in the former family home. This means that if an agreement can be worked out, the custodial parent will be awarded the house in order to give the children some measure of stability. 

Payments such as alimony and child support are not part of property division and are calculated separately based on each spouse’s income and other relevant factors. 

Uncontested Divorce

All of the above considerations are primarily relevant in cases where the terms of the divorce are being negotiated between the two partners. In some cases, there is no such argument, and both parties agree to the terms set out in the initial divorce filing—known as an uncontested divorce. This most commonly happens when a divorcing couple is in full agreement about property division, as well as child support and child custody.

The other case where an uncontested divorce may happen is when one partner defaults on the divorce. In these cases, the partner filing for divorce will usually be granted the terms they requested (within reason) because their spouse is not there to contest them. 

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