Property Classification Upon Divorce

The language of the state statutes must be examined to determine if certain property is subject to division. State property division statutes can vary, but there are two general models.

All Property Model
According to the all property model, the court may divide any interest which...
  • meets the criteria to be considered property and
  • is owned by one or both of the parties on the date of classification.
Dual Property Model
The dual property model provides that the court may divide only that property which is considered marital or community property. An asset can be considered marital or community property if it...
  • meets the criteria to be considered property,
  • is owned by one or both parties on the date of classification,
  • was acquired during the period of marriage,
  • and does not specifically qualify as the separate property of either party.
Comparison of the Two Models
The first two requirements of these models are the same while the last two are unique to the dual classification model. Following is a discussion of the requirements.
  • meets the criteria to be considered property;
  • This is very important. Anything that cannot be considered property is not divisible upon divorce.
  • is owned by one or both parties on the date of classification;
  • was acquired during the period of marriage;
Something which qualifies as property will not always meet the criteria to be considered "marital property." The criteria to be considered "marital property" differs from state to state. However, the general consensus is that the property must have been acquired during the period of marriage in order to be considered "marital property." Typically, property acquired prior to the marriage or after the marriage has ended is considered separate property, not qualifying as "marital property."

STATE PROPERTY DISTRIBUTION PROPERTY MODEL INCREASE IN VALUE OF
SEPARATE PROPERTY
ALABAMA: Equitable Distribution No Property Model Separate Property
ALASKA: Equitable Distribution All Property Model Marital Property
ARIZONA: Community Property Dual Property Model Separate Property
ARKANSAS: Equitable Distribution Dual Property Model Separate Property
CALIFORNIA: Community Property Dual Property Model Separate Property
COLORADO: Equitable Distribution Dual Property Model Marital Property
CONNECTICUT: Equitable Distribution All Property Model Marital Property
DELAWARE: Equitable Distribution Dual Property Model Separate Property
DIST OF COLUMBIA: Equitable Distribution Dual Property Model Separate Property
FLORIDA: Equitable Distribution Dual Property Model Separate Property
GEORGIA: Equitable Distribution Dual Property Model Separate Property
HAWAII: Equitable Distribution All Property Model Marital Property
IDAHO: Community Property Dual Property Model Separate Property
ILLINOIS: Equitable Distribution Dual Property Model Separate Property
INDIANA: Equitable Distribution All Property Model Marital Property
IOWA: Equitable Distribution All Property Model Marital Property
KANSAS: Equitable Distribution All Property Model Marital Property
KENTUCKY: Equitable Distribution Dual Property Model Separate Property
LOUISIANA: Community Property Dual Property Model Separate Property
MAINE: Equitable Distribution Dual Property Model Separate Property
MARYLAND: Equitable Distribution Dual Property Model Separate Property
MASSACHUSETTS: Equitable Distribution All Property Model Marital Property
MICHIGAN: Equitable Distribution All Property Model Marital Property
MINNESOTA: Equitable Distribution Dual Property Model Separate Property
MISSISSIPPI: Title Dual Property Model Separate Property
MISSOURI: Equitable Distribution Dual Property Model Separate Property
MONTANA: Equitable Distribution All Property Model Marital Property
NEBRASKA: Equitable Distribution Dual Property Model Separate Property
NEVADA: Community Property Dual Property Model Marital Property
NEW HAMPSHIRE: Equitable Distribution All Property Model Marital Property
NEW JERSEY: Equitable Distribution Dual Property Model Separate Property
NEW MEXICO: Community Property Dual Property Model Marital Property
NEW YORK: Equitable Distribution Dual Property Model Separate Property
NORTH CAROLINA: Equitable Distribution Dual Property Model Separate Property
NORTH DAKOTA: Equitable Distribution All Property Model Marital Property
OHIO: Equitable Distribution Dual Property Model Separate Property
OKLAHOMA: Equitable Distribution Dual Property Model Separate Property
OREGON: Equitable Distribution All Property Model Marital Property
PENNSYLVANIA: Equitable Distribution Dual Property Model Marital Property
RHODE ISLAND: Equitable Distribution Dual Property Model Separate Property
SOUTH CAROLINA: Equitable Distribution Dual Property Model Separate Property
SOUTH DAKOTA: Equitable Distribution All Property Model Marital Property
TENNESEE: Equitable Distribution Dual Property Model Separate Property
TEXAS: Community Property Dual Property Model Separate Property
UTAH: Equitable Distribution All Property Model Marital Property
VERMONT: Equitable Distribution All Property Model Marital Property
VIRGINIA: Equitable Distribution Dual Property Model Separate Property
WASHINGTON: Community Property Dual Property Model Separate Property
WEST VIRGINIA: Equitable Distribution Dual Property Model Separate Property
WISCONSIN: Community Property Dual Property Model Separate Property
WYOMING: Equitable Distribution All Property Model Marital Property


Suggested Reading
The Property Division Handbook The Property Division Handbook
This book will explain in detail the property distribution aspect of divorce and separation. It will focus on the rights each spouse has under certain laws, situations, and circumstances, and how the division of the property will be decided by the court or through negotiation.

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SPOUSES CAN DO IT -- The easiest and least expensive way for a couple to divide and distribute the marital estate is for the spouses to do it themselves. Courts approve any settlement that is fair and reasonable. When courts divide property, normally the judge grants each spouse a percentage of the total value.

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