Who Gets What Where
Tip: No matter where you live in the USA, you will not automatically receive half your marital assets in a divorce. State laws differ radically on who gets what when the marriage ends.
Almost everything you and your spouse acquire during your marriage is marital property ie: the family home, as well as non-tangible things such as retirement benefits. Marriage affords you the right to share in each others’ gains and losses. Now that you are faced with divorce how is it all divvied up? That all depends on what state you live in.
In the U.S.A there are two very different divorce standards, equitable distribution and community property. There are currently 10 “community property” states and 41 “equitable distribution” states.
Keep in mind that the more you know about your state’s divorce laws, the more organized you are and the more involved you are in managing your divorce- the better.
Here are some key aspects about Equitable Distribution and Community Property.
Just because the words “equate” or “equal” can be found in equitable, does not mean you will automatically receive half of everything. In the 41 equitable distribution states, the court decides what is a fair, reasonable and equitable division of assets. The court might decide to award either spouse 0-100%.
How does the Court decide what’s equitable? It factors in things like how long the marriage lasted, what each person brought into the marriage, how much each can or does earn, responsibilities for children, retraining, tax consequences, and debt. If you have a marital agreement, signed before or during marriage, you will have more control over how your assets are divided.
Essential things to remember about equitable distribution:
- Everything you acquired during your marriage is subject to division.
- It doesn’t matter whose name or money was used to acquire the asset.
- You, not the judge, have to prove what assets exist.
- If you can prove your spouse did away with some assets with divorce in mind, the Court may award you a sum equal in value.
- If you have educated yourself on the state’s laws you can then create, with your attorney, a strategy that will lead you to what you really want.
- You, as a partner in the marriage, are also responsible for any debts acquired during the marriage.
Only in Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington and Wisconsin will division begin at 50-50 if the marriage ends in divorce. These are the only states that now have community property laws. Here are some things to keep in mind:
Essential things to remember about community property:
- Just as all assets are considered marital property, so are all debts. Both are generally split right down the middle.
- Beware that those spouses who are aware that their state is community property may hide debt or increase debt due to the fact that their spouse is equally responsible.
- If you have residency in two states (one that is community property and one that is equitable distribution) speak with your attorney about which will benefit you more before filing. Generally speaking, the higher wage earner will do better in an equitable distribution state while a stay-at-home spouse would benefit from the community property state.
To find out the divorce laws of your state click here.