What Happens to Your Stuff When You Divorce?
When a couple decides to divorce, one of the issues that will have to be addressed is the division of their property and debt. Generally, the court will resolve this in one of two ways: equitable distribution or community/separate property. Let’s have a look at both.
Equitable Distribution
Equitable distribution is considered to be a fair (but not always equal) distribution of all the marital property and assets. Typically, the spouse with the higher income will receive a larger portion of the distribution based on the assumption that they contribution more financially to the union. Equitable distributions are used in all states except community property states.
Community Property
Property is categorized in one of two ways: community property or separate property. Separate property consists of property and assets that were acquired prior to the marriage as well as inheritances, personal injury awards and workers compensation, even if it was received during the marriage. Separate property is not subject to distribution and stays with its original owner. Community property is any property and assets that were acquired during the marriage (with the few exceptions noted above) and is divided equally between the two parties. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin and Puerto Rico are all community property states.
Debts
Debts are treated in much the same manner as property. However, it is not uncommon for the court to order the higher-earning spouse to pay for certain debts that should theoretically be the responsibility of the lesser-earning spouse. For example, the court may order that the lesser-earning spouse can live in the marital home however; the higher-earning spouse must continue to pay the mortgage.
Fault or No-Fault?
In some states, a no-fault divorce is allowed and property distribution is not affected by individual actions of the parties. However, many states also allow an “at-fault divorce” where both sides are allowed to present evidence that would place “blame” on the other spouse. In the case of at-fault divorces, the property distribution can be affected by the behavior and actions of the spouses. For example, if it is proven that one of the spouses had an extramarital affair, that spouse may receive a lesser portion of the marital property.
Planning Ahead
One way to ensure that both parties receive a favorable distribution is to create a prenuptial agreement prior to the marriage. Assuming that the agreement doesn’t overly benefit one spouse more than the other, the court will typically grant the property distribution as outlined in the prenup.
Alimony and child support are addressed separately from the distribution of property and assets. If all of these issues are easily agreed upon, you may be able to use a do-it-yourself divorce form. However, most need the assistance of an attorney.
For more on divorce and property distribution, check out these books on divorce and money (book review) and protecting your financial security when getting a divorce (book review).
53 Comments
I was married for 27 years, native state of Louisiana, and divorced in 2000. My divorce papers state that property distribution would be decided later at my discretion. Because my son (then age 17) was still living with my ex-husband and I left the home in search of employment out of state, I elected not to divide or sell the family home at that time. My ex-husband has continued to live in the home and has since remarried. He has refused to settle this out of court with me and I have not forced the issue in an effort to resolve it without hard feelings. I worked the entire time we lived together in our home from 1981-1998. I continued to send money for my son to live there after I moved out. The home is paid for and owned free and clear. How should I go about handling this issue now and get my share of this equity? I had paid a lawyer to handle this matter for me and he took my money and ended up disbarred when several clients (including me) complained to the Bar Assoc. My ex-husband has sold off some of our assets acquired during the course of our 27 year union. I am uncertain how to proceed having been burned once by a lawyer in the past. There is no time limitation on community property in Louisiana and I am entitled to this settlement.
pp
You (or your attorney) will have to file a motion in court requesting that the community property assets be divided and/or allocated, including the home. If your ex-husband has since sold some of the assets, and if you can prove it, he may owe you half the value of those assets.
You should file a motion as soon as possible. Contact the Louisiana bar association to obtain a referral for a family law attorney in good standing with the bar, or request a review of your case here.
I have a question to ask on the letter said “As i will notice in the petition,my wife intends to seek a ” status only” divorce. What it this mean ” this means that issues regarding property distribution, child custody, child support, and spousal support, among other things, will not be addressed. These issues will be left out for me and my wife to handles. My wife simply wants to dissolve the marriage and return to single status.
That mean I have paid for property distribution, child custody, child support, and spousal support. Because i don’t make alot of money but my wife alot of moneys, I need your answer!
Thank
Jason
If your wife filed for a “status only” judgment, that means that marital status will terminate and the court reserves jurisdiction over spousal support, child support, custody and division of property. A status only judgment does not address anything other than the termination of marital status – that does not prevent either you or your wife, however, from seeking separate support or custody orders to address those issues.
Do I get credit for the money I have spent to live outside the home after separation, prior to the divorce being final?
In a community property state, and if you spent community property money after separation to live outside the home, you will be charged with one-half that amount, since one-half of the community property belongs to you and the other one-half to your spouse.
If you spent separate property monies after separation (such as post-separation earnings) to live outside the home you are neither charged nor credited.
If you continued to pay the mortgage for the family residence and your spouse continued to live there while you lived outside the family residence, you may be entitled to the fair rental value for your spouse’s use of the family residence.
Husband and wife buy property; property in wife name only. wife cheats and is pregnant by another man. Husband wants divorce. does he still have to contribute to property mortgage? husband wants to walk away, period. State; Georgia
If Husband was contributing to the mortgage payments during the marriage he must continue to do so until there is a court order that provides otherwise.
I have a question im recieving a structured settlement it was settled during my marriage but it happened to me when I was a minor now my wife tells me as soon as I get the money shes entitled to half and then is going to divorce me if she allowed to do this I live in nevada. Any suggestions thank you
It depends on what type of settlement you are receiving. In Nevada, a portion of a personal injury award which is attributable to the pain and suffering of the litigant is not distributable in a divorce, but the portion of the award attributable to lost wages or impairment of earning capacity may be distributable in a divorce.
Hello, in the process of divorce. Right before filing, my husband sold off assets without my knowledge (motorcycle, several investments), and he has used that money to pay for a (reportedly very good) lawyer, whilst I’m stuck with no money for counsel myself. He says I’m going to get half the money from the motorcycle and investments “on the back end”. Do I have legal recourse? What’s my next step?
If you live in a community property state, the following will apply: during the course of the dissolution you will be required to list all community property. Be sure to list the proceeds from the sale of the items which were sold. In the division of assets, the court will award you half the value of these assets.
You should also have access to community funds with which to retain an attorney.
Even though the money has already gone into his lawyer’s pocket, it will be included in the division of assets?
Thanks for your reply, btw.
If the items that your husband sold were community property you will be offset for one-half that amount in the division of the assets. However, if you withdraw a like amount from community property to pay your attorney then it will be a wash.
If your husband has retained an attorney, I highly advise that you also retain an attorney.
I live in La and divorced my wife of 30 years. After divorce i granted in the decree that she can live in our residence free until our property settlement.
I then went and lived in a rental unit we own. We are trying to settle or property after a 5 year period of time… She now wants me to pay her rent and that unit…. During this time I have rented the other units we own and she has shared in the profits and loses… We also have another property that we own outright and where she has her business…. She claims not to owe me rent on that property ….. Why should she get rent from me and not pay any rent? I am not claiming any on the main residence where she resides.
In an Arkansas divorce a vehicle titled, licensed, insured and financed solely by the husband is award to the wife with the contingency that she secure her own financing, title, license, insurance, etc completely releasing the husband from the obligation. Several months have passed and the wife is in possession of the vehicle but not making payments and has taken no steps to refinance or license the vehicle in her name. What recourse does the former husband have?
I live in Louisiana. My divorce has been granted for about a year now. We have not settled property yet. I still don’t have a clear answer as to why. Is there something I can do to push this issue? I do have an attorney, and she just keeps telling me she has been calling and she is waiting on them. I am ready to call my ex’s attorney myself. Is that totally out of the question? My life is on hold waiting for this money…paying off bills that I am accumulating raising two children with a job that has cut my hours in half due to the recession. Thanks for you help!
The length of time it takes to negotiate and finalize a property division often depends of the complexity of the issues involved. You should contact your attorney in writing (e-mail is an expeditious way to do this) to obtain the status of your case.
My sister is going thru a divorce in Mississippi. They have NO kids. She makes more money than him and has always paid the house and other utility bills where he paid for groceries and anything that he wanted to do. He has a Harvey motorcycle that is paid off in March 2010. She has a retirement fund around $60,000. He tells her the house only appraises for $62,000. But he wants the divorce and the house with her to leave the house with nothing but her retirement. And go buy another house with her retirement savings….He made calls and text messaged another woman during the last 4-6 months of the marriage….He says no affair what I dont know….What should Tell her..besides go get another attorney….Really need help…
Your sister should seek advice from a family law attorney in her area. If the house was purchased during the marriage then both parties are entitled to half its value. It may make sense to sell the house and split half the sale proceeds between them.
Me and my wife have been seperated for 9 years.When we split I left
everything and we have since both moved on. I have lived with my current
girlfriend for 7 years now. Everything we have we aquired together. Now we are going through with our divorce and she says she can take half of everything I have now. We didn’t own any homes or stocks or anything like that , just regular household items and a car which was reposessed. We do have children but all that was settled through the Attorney General years ago. I live in Texas I know that this is a community property state, but would a judge really give her half of things she had nothing to do with? And how do they decide if the belongings are mine or my girlfriends? Are they going to take her stuff as well?
In some states, property/income acquired after the date of separation is separate property. This may or may not be the case in Texas. You should consult the Texas Family Code to find out the significance of the date of separation.
my brother is very ill..he has lost a leg has diabetes heart issues etc and is in his 50s..and is unable to work and is to get a workers compensation disability award…his wife of 13 yrs has decided out of the blue to divorce him..poor guy..he is very upset..anyway will his wife be able to get any of his disability award in the divorce>she is in her 40s and full time employed..plz let me know thanks
If our house was purchased in full with a
trust fund/ annuity payment from a lawsuit
settlement when he was 10 and my name
is listed as 50% owner is it still considered
community property?
My sister’s divorce was recently finalized with the decree stating that the marital home is to be sold. Her ex-husband has not yet left the home and will not cooperate or communicate with her regarding moving forward and contacting a real estate agent. What steps can or should she take at this point to initiate the selling of the home?
She may have to file a motion to enforce the divorce decree/judgment if her ex husband will not cooperate in listing the home for sale.
I am engaged to someone in Louisiana that makes about the same amount of money as my ex. Can my ex go after my fiance’s money to reduce child support or not give me the property settlement?
can my spouse get half of my structured settlement from a wrongful death suit?
Hi,
I was married in sept 2005, in janurary 2008 my spouse left to live with her parents after her alcohol/drug issues became too much for me to deal with. I filed for divorce in October of 2009 after finally being able to afford it. The only thing my spouse is asking for is the “equitable division of martial property.” Do purchases I made after she left count? How is the debt we racked up during our marriage (mostly under my name) counted in the division?
The division of marital property will depend upon whether you live in a community property state. If you live in a community property state, then all property acquired during the marriage is community and will need to be divided between you and your spouse. Generally, property acquired after the date of separation is your separate property and is not included in the marital estate. Likewise, all debt incurred during the marriage is community debt which both spouses are responsible for.
I am divorcing after 21 years of marriage. I have made several proposals to try and end this without getting attorneys.I only asked for certain household items and 700 dollars a month. He makes 30 dollars an hour and I make 10. He claims adultery which is untrue. Emotional and physical abuse is what has ended the marriage and he was arrested last month for domestic violence against our 17 year old daughter. He says because he thinks I had an affair, he will make sure I leave the marriage with nothing. I am under the impression that there will be an equitable distribution for the both of us even though I can prove abuse through arrest records. My question is that will his claims of adultery in court cause me to recieve nothing at all in the divorce? I live in Ohio.
In the state of Mn : Are social security disability benefits considered marital property or separate property if the person was disabled prior to marriage?
Thank you!
Mindy
My ex and I are getting a divorce and we can’t sell our house right now because of the real estate market. We have decided to keep the house and be co-owners until the market comes back up and then equally split the proceeds. We are thinking of renting it for 2 years until we sell it. Can we do this?
Yes, you and your ex can agree to co-own the house until you sell it. However, you want to be sure that your settlement agreement is filed with the court and addresses payment of the mortgage, repairs etc. until the house is sold.
I’m fixing to go through a divorce. My ex is trying to make a deal with me on certain things to prevent me from taking him to court. We live in Louisiana. My ex grosses approx $8000.00/month and I gross approx $1200.00/mth. We don’t have much community property together. I want to know about the community debt. With him making a great deal more money a month than me, how is the community debt usually decided? Will the judge split everything down the middle or would he take into consideration my regular monthly bills, the child we have together and the fact that my ex makes so much more than I do?
I was married for 14 years and now divorced for 2. My ex wife recieved half of the house. And now after two years my lawyer notified me and told me that my wife will be taking some of my retirement for the rest of her life. I was wondering if she has already married if that defaults the whole thing. Why after 2 this has come about.
My divorce was finalized in 1995, prior to the finalization of the divorce I was awarded sole possession of a boat because my ex cleared out our accounts and left me and the children with no money. My attorney filed to have the boat awarded to me to dispose of as I felt necessary and this was in fact awarded by the courts. That said there was a case where restitution was awarded in a criminal action for damages to the boat by a third party. This person skipped town without paying. In 2005 he paid the debt of 2600.00. However this debt was paid only to my ex husband, and I discovered a couple of days ago the funds were sent to the State of Arizona unclaimed funds in his name only as he was listed as the sole owner of the boat at the time of the damages. I contacted him and we mutually agreed that he would collect the funds and they would be divided equally between our two adult children. Later that day he did a total turn around and basically told me that he was not going to collect the funds and wished I would drop off the face of the earth. That said, my question is since I was awarded the asset of the boat, am I entitled to receive these funds? (it is still my intent to adhere to the verbal agreement to divide the funds equally between the children.) How do I enforce the collection of these funds, and what are my rights? What papers do I file? Order to show cause? a type of petition? ect…
My neighbor divorced his x-wife shortly thereafter started taking up with another women. Whom claimed she owned her own home. Next thing you know his disabled adult son that had been living in the house. The girlfriend who had no legal claims to the home told him to get out of the house and basically threw him out in the street. Now she has packed up and claims she is moving back to her home and the guys Dad also, she wants his Dad to sell the house. Since the grown son does have a disability is this true can his Father actually sell the house and listen to the women and no longer provide shelter for the son that is disabled? Now that they have moved back in with the girlfriend could the son move back into the house would the law be on his side?
i been married for year and half. my wife wanted to move to another state so i did now we been in new state for a year and my wife back to state we lived and she told me she cheated i forgave her.. than she told she pregnant and its mind.. i dont know if its mine. two weeks later she goes back and now she wants to live there.. so she cheated and wants a divorce .. she wants me to give her money and give everythin to her… my question is can she take anything from me when i dont have anything new since we been married and do i have to give her money when the divorce happens ,,, please help
My divorce was final in Nebraska. My ex-husband has failed to comply with the property settlement for both personal property and money ordered to be paid. What can I do to enforce the settlement?
My wife of 21 years has asked for a divorce, she has a medical condition that has only been around since October of last year and is on short term disability – but thinks she will get long term disability, she is claiming under equitable distribution she is entitled to move than 50% of the marital assets and that she gets to take the monies she got as an inheritance off the top before we settle the real estate we have acquired over the last 21 as she put those in with the intention of getting that back (we are taking a bath on all of it.
Is there a statute of limitations in California for a separation? My boyfriend has been separated from his wife since 2006. The divorce proceedings have stalled as his estranged wife refused to communicate or proceed forward. He thinks that after 7 years of separation, she may forfeit her rights to claim her share of his 401K then. I said a divorce is not automatic and statute of limitations does not apply to divorce cases. Who’s right? And isn’t she still entitled to her share of his 401k even after many years of separation?
Spouse took most (~80%) of our community property (couch, tv, etc…) with her when she moved out. We live in a community property state. Her attorney now says there is no proof that those items have any more value than those she left behind so the distribution is fair. Neither of us make a lot of money and the total resale value of what she took might be ~$7000. What are my options? I know an appraiser is one, but that may cost more than I’m entitiled to.
I reside in Louisiana and purchase my home prior to my marriage in 1993, however doing the marriage (1995) I had it refinance 1998, and was divorce in 2002 due to her adultery act. Will the home be consider as community property since I had it refinance? Does adultery play a part and are there any court cases that can be cited?
Is property purchase (during marriage) with VA disability that I was in receipt of prior too marriage consider as community property. Are there any court cases that can be cited?
My 8 month pregnant niece’s husband walked out on her. They have not done anything legal yet but he informs her that according to Oklahoma law, he can come to their apartment where she is still living and take anything he wants because Oklahoma is an equitable property state. Can he just come in and take everything and leave her with nothing?
Five years ago, while living in New York, my wife and I executed a separation agreement. I now live in Ohio and my estranged wife is still in New York. After the separation agreement she bought property in Ohio. I believe Ohio does not recognize separation agreements from other states IF THE PARTIES ARE DOMICILED in OHIO. What about if one person is living in Ohio and one person is not?
Is it legal to sell an asset prior to filing for divorce in California? The proceeds will be used to move out of state.
I divorced my abusive spouse 6 years ago in Louisiana. He forced me and our 2 young kids out of the home (which was purchased by both parties during the marriage) during a violent rage in 2003. He has since then assumed sole ownership of the house. Though I desired to settle the property at the time of the divorce, I could not afford to retain an attorney to do so and he was content to live in the house without settling the property division. Now, several years later he does not want to agree to a 50/50 settlement because he has Invested more money than I have into the property and the mortgage. Is he entitled to more than 50% if we were to sell the property since he’s been paying the mortgage?
Is my former spouse entitled to more than 50% of the community property (family home) settlement since he has lived in it and paid the mortgage for several years following the divorce? (Location: Louisiana)
If you were married for 27 years he must have been a pretty good husband especially for you to leave him with your son? If you left the home and he took care of your son why should you be intitaled to half ??? Did you really send money for your child really?
My uncle was deported from this country and when he was deported his wife divorced him. They both agreed to the divorce but his wife was the one to write the divorce papers up. He is in another country and was not able to sign it so somehow she got the papers signed and in the divorce papers she wrote that she would get couches. My uncle, however, gave the couches to my grandma. Now she is taking this to court. Is it even legal for her to have the divorce papers signed?
Live in VA. I have been divorced since 2008. Decree ordered sale listing of marital home upon child reaching 18. Child reached age 18 and had to take ex who resides in house to court to enforce sale order 2.5 months later. Court advise ex to cooperate with sale listing as ordered. Ex placed sign sale by owner and posted one picture on sale by owner web site. I continually called to get a status with no reply. I demanded house be listed with realtor, no reply. I contacted realtor and made appointment to look at house. Called ex and provided over 48hrs notice that I needed access to house to show to realtor, no reply. Realtor comes, unable to enter house but comments on all trash and junk around house. I was told and shown pictures of inside of house showing trash and junk in all rooms, no maintenance or cleanliness. Call ex and requested meeting, no reply. Mortgage payment is current. 4 months since child reached 18 and still no cooperation and worse yet no reply to calls, text or email. Never home when I come by. To recap, decree order home listing and sale, 2 months later court ordered again to list and sale, 2 months later no contact, no cooperation, house in terrible condition (one would say sabotaging any sale possibility). What are my options?
my question is i got married with my wife in 10-30-2008 and i applied for the papers and she got her 2 years temporary green card which will expire july 2011 but i found out she having a affair with somebody else and she left 5 months ago telling me we cant get along . i want to ask that i have a business for 7years if i file for divorce next month will i have to give her half of my business or what. its a corporation which was made in 2004 . or the court will see that how much money the company has made after we got married i am just curious to know that . i would appreciate that any lawyer can give me suggestion what to do