How is Property and Debt Divided During Divorce

This article is by Todd Spodek a NYC divorce attorney. It’s common for a couple going through divorce to have to think, and decide, about how to divide their property and debts. Often, parties will prefer deciding on their own – rather than involving a third party, or letting a judge decide. If a couple is unable to agree, they can submit their property and their disputes to the courts – who will use state laws to divide the property and debts.

Courts divide property under two basic methodologies: community property or equitable distribution. Debts, are also divided up based on these principles.

In 10 states, such as Alaska, CAlifornia, Arizona, Idaho, etc, all of the property of a married person is classified as either community property(which means the property is owned equally by both spouses), or the property is defined as the separate property of either spouse. When a couple divorces, the community property is divided in half between the two spouses. Each spouse is entitled to keeping his or her separate property.

Generally, the courts will award each spouse a % of the total value of the property. Each spouse will get personal property, assets, and debts, whose worth adds up to the his, or her, % value that he/she is entitled to. If you are confused about what all of this means, we highly suggest you speak to a Los Angeles divorce lawyer, in order to get more information.
Here are some general guidelines on what is considered community property, and what isn’t:
Community property generally includes all of the earnings and everything materialistically speaking, acquired with those earnings. All debts that incurred during the marriage, are community property debts.
Separate property of one spouse means gifts and inheritances given to just that one spouse. Examples could be personal injury verdicts/settlements, proceeds of a pension(that was vested before marriage). Property purchased with separate funds of a spouse is another example of something that is considered that spouse’s separate property. A business which is owned by one of the spouses before the marriage, remains his or her separate property. The only instance in which the property, or business, could be considered a part of the community┬áproperty – is if community funds went into the separate property. If community property is commingled with separate property, than that separate property may become in part, or entirely, community property. Getting exact specifics will depend heavily on the advice provided to you by a divorce attorney, familiar with the specifics of your case.
Another important case, especially when dealing with high net worth divorced couples, looking for divorce, is who gets to keep the house or houses. If you have children, then the parent who spends the most time with the kids, remains in the marital home. If you don’t have children, and the house is the separate property of just one spouse – then that spouse has the right to ask the other to leave. If, however, you don’t have children and you own the house together – then life can be trickier. Neither of you can have the other leave, legally. You can request it – but can’t demand it. If you don’t come to a decision, then the courts will decide for you. If your spouse decides to change the locks, and prevent you from entering your home – then you can call the police. The police will instruct the other spouse to open the door, and let you in.

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