Divorce property rights

Written by bernadette a. safrath
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Divorce property rights
Divorce can mean sorting out who has the property rights (Comstock/Stockbyte/Getty Images)

When a married couple gets divorced, the property held before their marriage and obtained during their marriage must be classified into one of two different categories. Once property is classified, it is distributed between the parties one of two ways, depending upon the state the parties live in.

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Separate property

Separate property is not included in the property divided among the spouses. Upon divorce, separate property remains with the spouse who owns it. It includes: (1) any property obtained by either spouse before the marriage, (2) any damage award won from a personal injury lawsuit, (3) real estate purchased with a spouse's earnings from before the marriage, and (4) an inheritance given to one spouse.

Marital property

Marital property is any income or property obtained during a marriage, even if the property is only titled in one spouse's name. Property includes real estate, automobiles, furniture, wages and pension plans.

Community property states

In community property states, marital property is divided in half and given to the spouses equally. The only exception to the 50/50 division is when one spouse is considered at fault, by committing adultery, for example. The current community property states are: Arizona, Idaho, California, Nevada, Louisiana, Texas, New Mexico, Wisconsin and Washington.

Equitable distribution states

The other way for courts to divide property is equitable distribution. This means that the property is not always distributed equally, but in a way that gives the spouse with a higher income his fair share. Some equitable distribution states also have an exception for the party at fault, meaning that this spouse may receive less than his share.

Factors for division of property

If a divorcing couple resides in an equitable distribution state, a court looks at several factors when diving the property. Those factors include: (1) age of the spouses, (2) health of the spouses, (3) length of the marriage, (4) ability of each spouse to earn a living after the divorce, and (5) fault.

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