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Property Division Models in a Divorce

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Divorce is a scary time in your life. Everything is about to change, and that’s intimidating. Major life fluctuations, even when they are good, require adjustment. We now know, through psychology, that the very reward receptors in our brains are often tied to our intimate relationships. No matter how content or frustrated you were in the marriage, reformatting your life will take a lot of emotional work.

Ending a romantic relationship is hard on anyone, but a divorce adds an extra level of strain. Beyond the emotional struggle, there are now pragmatic concerns. Real, tangible worries surface about how your life will be affected. There are questions about property. There are doubts about who will keep what, and how that will be determined.

There are two major models used to split marital assets in the U.S.: community property division and equitable division.

Marital Property

Before looking into types of division, it’s important to look at what, exactly, is considered a marital asset, sometimes called a “communal asset.” States make their own rules about such things, and those rules can be very granular. Where one state will absolutely consider a car a marital asset, another may allow for more grey areas, considering the purchaser of the car the sole owner.

In general, anything purchased by either party during the marriage will be a marital asset. It doesn’t matter if the other person used or cared about the product; and it doesn’t matter if either party was consulted in buying the item. For example, Sarah has been collecting comic books all her life, and her wife Jane has never once read a comic. Even so, the comics Sarah bought during the marriage are now, officially, marital assets.

A “separate asset” tends to be property that is more intimately personal. For example, a gift to one person given by a from a friend outside of the marriage wouldn’t be classified as communal. Inheritances tend to be separate from the marriage. Property that was owned before the marriage is usually separate. Also, any property you gain by trading your separate assets belongs solely to you. These are generalities. State definitions may vary, and even these categories become debatable.

Equitable Property Division

“Equity” is not the same thing as “equality.” Equality assumes that everyone gets the same thing or the same opportunity. Equity is an attempt to create a fairer solution for those who need it. A simple example of this is a staircase. In a world of equality, everyone may use the stairs whenever they please. What happens, then, to a disabled person who can’t use stairs? When we build ramps and elevators for them, we are demonstrating equity, not equality.

In a divorce, an equitable division takes many factors into account. The actual amount of money made by this or that spouse may not matter. Sometimes, judges may look at who has more “claim” to the item. Jim buys his wife Patricia a car. The purchase came from his income. However, he never drove it, nor did he help in its upkeep. Patricia uses the car for work, which often requires her to go from location to location. She drops the kids off in the car before work and picks them up after. She’s paid for every oil change, every tire rotation, and every drop of gas. Moreover, she loves it. She keeps it pristine, waxing it every Saturday. In a situation like this, the court may grant the car to Sarah.

Community Property Division

The community property model is used by only nine states:

  • Wisconsin
  • Washington
  • Texas
  • New Mexico
  • Nevada
  • Louisiana
  • Idaho
  • Arizona
  • California

Some find it surprising that California still uses this model. For a state with a reputation for being very progressive, it uses a model that many find antiquated. At its core, community property division is all about equality. It generally looks at the total income in the home and splits it 50/50 among the spouses. Physical assets can be divided by awarding a dollar amount value. Meaning, one party can pay the other half the value of the car.

The major exceptions to equal division are spousal support and child support. After the divorce, if one party is left with no income and has little future earning potential, the judge can order that the other party provide financial support.

Child support is decided by the court’s interpretation of what is in the best interest of the child. They take factors like the child’s current standard of living into account. The incomes of both parents are evaluated, and the court decides what percent of each adult’s income should go toward the children.

Dividing Property Yourself

Partners always have the option to divide property how they see fit. This is possible through an “uncontested divorce.” If you can make it work, it’s your best option. Couples are free to decide who gets what, without dragging the matter through a court.

There are a lot of advantages to amicably dividing the property, when a couple can do it.

  • First off, there will be far less paperwork. Couples can meet with a third party, agree to everything, sign their documents, and be on their way.

Deciding yourself saves time. You won’t be in an out of a courtroom for days. There will be far less meetings with your lawyers, and the divorce itself will happen much quicker. You will ultimately need the courts to approve your agreement, but the process is far less lengthy.

  • Saving time also saves you money. You can avoid the expense of time spend investigating assets, time spent in a courtroom, etc.
  • Emotionally, an uncontested divorce will be much easier on you. You can focus on letting go of the past and embracing the future without all the fighting in between.

If you do choose this option, make sure to secure the services of a good lawyer. Even though the process is far less complicated, there is still a lot to consider. An attorney can look over your agreement and point out any discrepancies you hadn’t considered. You don’t have to think of your attorney as a shield or a sword in this context. You can go to a lawyer, and they can work with you to reach a mutual benefit.

Talk to a Lawyer

No matter what your situation, if you’re going through a divorce, you should secure the services of a good lawyer. No matter how mutual the split, you always stand the chance of meeting an unexpected hiccup. Simple oversight can cause real problems for your future. An experienced lawyer knows what to avoid and how to keep you protected.

Don’t try to handle your divorce alone. Call us today for a free consultation at (310) 817-6904. You can also contact us online.


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