Dividing Property and Debt During Divorce FAQ

Questions:

• How are property and debts divided at divorce?
• How do we distinguish between community and non-community property?
• Who gets to stay in the house?

Answer:

How are property and debts divided at divorce?

It is common for a divorcing couple to decide about dividing their property and debts themselves (with or without the help of a neutral third party like a mediator), rather than leaving it to the judge. However, if a couple cannot agree, they can submit their property dispute to the court, which will use state law rules to divide the property.

Courts divide property under one of two basic schemes: community property or equitable distribution. Debts are divided according to the same principles.

• Community property. In Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico, all property of a married person is classified as either community property (owned equally by both spouses) or the separate property of one spouse. At divorce, community property is generally divided equally between the spouses, while each spouse keeps his or her separate property.
• Equitable distribution. In all other states, assets and earnings accumulated during marriage are divided equitably (fairly), but not necessarily equally. In some of those states, the judge may order one party to use separate property to make the settlement fair to both spouses.

Division of property does not necessarily mean a physical division. Rather, the court may award each spouse a percentage of the total value of the property. Each spouse will get personal property, assets, and debts whose worth adds up to his or her percentage. (It is illegal for either spouse to hide assets in order to shield them from property division.) Nolo's Divorce & Money book can help you learn more about dividing money during divorce.