Most people facing a divorce have a lot of worries. If you have children, they'll probably be your biggest concern. But right behind will be questions about money and property. A lot of people assume that everything has to be split 50/50 with their ex. That's often what happens—but not always. In fact, the laws in most of the United States allow judges to distribute a couple's property unequally in divorce, as long as the division is fair.
In every divorce, a couple's property and debts must be divided between them. But each spouse will keep their own separate property, and they'll be responsible for their own separate debts. (Learn about the difference between marital and separate property.)
The rules in your state will mostly determine how your marital property will be divided in your divorce. The particular circumstances of your marriage and finances may also play a role, as long as state law allows that. And even if your state requires a 50/50 split, you and your spouse may agree on a different way of dividing your property. Although a judge will need to review your settlement agreement before granting a divorce, judges typically approve property agreements unless they're obviously unfair.
Basically, states have two different approaches to the ownership and division of marital property: equitable division or community property.
In most states, the laws on marital property and divorce use what's known as the "equitable division" rule. But remember that equitable doesn't always mean equal. Instead, judges must consider the specific circumstances in each divorce before deciding on a fair way to split the couple's assets and debts.
In nine states in the U.S., the law typically presumes that both spouses have equal (50/50) ownership and control of any property that either one of them has, acquires, or accumulates during the marriage—unless that property qualifies as separate property.
Usually, that means the judge will split the community property 50/50 between the spouses when they get divorced. But even in some community property states, judges may divide a divorcing couple's assets unequally. For example:
Even though the laws in most states don't require a 50/50 property split in divorce, judges typically prefer a roughly equal division in most cases. As a practical matter, it's usually easier to see that it's fair when each spouse walks away from the marriage with close to the same amount of marital assets (minus debts).
So if you're arguing for a different result in your divorce, you'll need to provide evidence that your proposed property division would be equitable because of specific financial and other circumstances in your marriage. And if you're going to court, you'll almost certainly need a divorce lawyer to help gather that evidence and make that argument before a judge.
But even if you're hoping to reach a property agreement with your spouse, you'll be in a stronger negotiating position when you know what a judge might decide in the event that you and your spouse can't resolve your disputes. That means understanding the laws in your state and the factors judges must consider when cases go to trial. Learn more about dividing property during divorce and how to reach a property agreement.