When spouses divorce, the court decides who gets what property and debt. States follow one of two main approaches.
Community property states
A handful of states, including California, Texas, Arizona and others, treat most property acquired during marriage as owned equally by both spouses, and divide it equally or in a way the law specifies.
Equitable distribution states
Most states divide marital property fairly, which is not always equal. Judges consider factors such as length of marriage, each spouse's contributions, earning power and needs.
Marital vs. separate property
- Marital property is usually what either spouse acquired during the marriage.
- Separate property is usually owned before marriage, or received as a gift or inheritance, if kept separate.
- Mixing separate property with marital funds can turn it into marital property.
Debts and next steps
- List all assets and debts, with documents.
- Gather statements for the past several years.
- Do not hide assets, since courts can penalize hiding.
- Consider mediation to agree on a division.
- Talk to a family law attorney about retirement accounts, business interests and the family home.
Frequently asked questions
Does it matter who is at fault?
In many states fault does not affect property division, though some consider it.
Are debts divided too?
Yes, marital debts are typically divided.