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The Divorce Encyclopedia
Division of Property

Term Definition Division of Property - the way courts divide property.
Application in Divorce After property has been classified marital or separate, courts divide it in one of two ways: as community property, which means equally, as is the case in nine states, or in means other than community, which means equitably of fairly, as is the case with the remaining forty-one states.

In general, in community property states, spouses own equally almost all the property the other one acquires during the marriage, regardless of who has title, and in these jurisdiction the terms "marital property" and "community property" are used interchangeably. This would include the income of a spouse.

In general, in equitable distribution states, a person’s income is his or her own, and property in one name, even if both paid for it, is the property of that person.

Among community property states, only California, Louisiana and New Mexico always divide equally. Three other community property states -- Idaho, Nevada, and Wisconsin -- begin with presumption that it should be equal, and then entertain arguments to the contrary from either spouse. Equal division does not mean that each asset is split in half; instead the court makes certain that the total of the assets is divided in half.

In a similar fashion, among equitable distribution states, eight states -- Arkansas, Florida, Indiana, New Hampshire, North Carolina, Ohio, West Virginia, and Wisconsin -- begin with a presumption that assets should be divided equally. In these jurisdictions, the courts entertain arguments from both spouse about why property should not be divided equally.

Equitable distribution does not mean equal; it means fair.

The division of property as described here sounds simple and easy. In practice it is not. Each state not only has a set of what are termed "factors" by which a judge determines a fair division of property but also gives courts "the freedom to consider anything that is relevant to [an individual] situation."

In determining whether a spouse’s interest is marital property, a court must decide whether the interest meets the legal definition of property. Educational degrees and future inheritances are not property, and cannot be divided in a divorce.

See also Classification of Assets; Interspousal Gifts; Prenuptial and Antenuptial Agreements; Separate Property; Equitable Distribution; Community Property; Kitchen Sink States; Dual Classification States; Professional Degrees.

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