Frequently Asked Questions About Property Division In A Divorce

Posted on: 19 February 2021

In a divorce, one of the most contentious issues is the division of property. Many issues determine property division during a divorce. These include whether you're in a community property or equitable distribution state, whether there's a prenuptial agreement or not, and whether there's a home in question.

Here are three of the frequently asked questions that couples ask their divorce lawyer about the division of property.

How Does State Law Affect Division of Property?

While the simplest way of splitting property in the event of a divorce is through an agreement amongst yourselves, most couples resort to the court process. The court will apply state law when dividing property in a divorce case. Property division may be handled depending on whether you're in a community property state or an equitable distribution state.

In a community property state, marital property is classified as either separate or community property. Community property is equally divided, whereas separate property goes with its owner. States that practice community property law are Arizona, Idaho, California, Louisiana, New Mexico, Nevada, Washington, Texas, and Wisconsin.

In an equitable distribution state, the judge decides how to divide the property. The judge may give the higher-earning spouse a large share of the property. All other states not mentioned above use the equitable distribution method for the division of property.

How Will a Prenuptial Agreement Affect the Assets?

There are two types of prenuptial agreements: a prenuptial and postnuptial agreement. The prenuptial agreement occurs before marriage, while a postnuptial agreement occurs after marriage. Nuptial agreements make it easier for you and your spouse to define which property is separate and which is marital.

However, you can dispute a nuptial agreement if you didn't agree to it voluntarily. Other reasons to reject this agreement are if you didn't have enough information or were tricked into signing it. If you don't have a nuptial agreement, you can agree on a separation agreement. This out-of-court agreement distinguishes between the community and separate property. Make sure you consult a divorce attorney before agreeing to a separation agreement.

Who Takes the House?

One common question most divorce couples ask their lawyers is who takes the house. If you and your spouse cannot agree on who keeps the house, the judge will decide for you. In a community property state, the judge will ensure equal division of the home. This may mean ruling that one spouse gets the house and pays the other spouse the half-value of the house.

In some other cases, the judge may order you and your spouse to sell the home and split the proceeds. In some states, there are restraining orders that prevent the sale of a home. You should consult your divorce lawyer for advice about your state's laws that will affect who takes the house.