How Your Assets Are Divided In A Divorce

27 October 2015
 Categories: , Blog


The location of your divorce matters a great deal when it comes to dividing property. If you do not have a prenuptial or other written agreement, you and your spouse's assets will be divided according to the law of your state. Unlike many other legal matters, divorce settlements can vary a great deal depending on your individual circumstances. To protect yourself, you need to hire an experienced attorney who specializes in divorce matters. 

Community Property 

In the US, nine states have community property laws: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.  Couples divorcing in Alaska can choose the community property option. In these states, earnings and property acquired during the marriage are equally owned by both parties, no matter who actually earned the money or bought the property. These divorce settlements are often quite simple since the law is so clear cut. 

Equitable Distribution

The remaining states follow the process of equitable distribution, which relies heavily on the judge's discretion. In order to make divorce agreements fair, judges will consider each party's ability to make a living, the needs of any children, the length of the marriage, and a variety of other factors. Alimony may come into play as well as child support. Although the judges have a great deal of freedom in handing down their decisions, some states encourage them to give each party at least one-third of the assets. In equitable distribution states, the role of your divorce lawyer is vital. Without a good one, you can end up financially devastated. 

Written Agreements

You can avoid having the state divide your marital assets by having your lawyer create one of several written agreements. Either a prenup, postnup, or private divorce agreement can cause the property to be divided the way you and your spouse wish. These agreements cannot violate state law. For instance, a prenup cannot determine child custody or support. In some states, you cannot forgo alimony. Also, prenups cannot in any way encourage divorce. All of these agreements need to be drafted by an experienced attorney. 

In addition to being emotionally devastating, divorces are frequently a financial nightmare. If you live in one of the equitable distribution states, your divorce attorney can make the difference between you living comfortably or in near poverty after the marriage is terminated. Even in the community property states, a good lawyer may be able to negotiate a better settlement for you. If you are going through a divorce, hire an expert to protect your financial interests.