Property Division in Divorce Proceedings

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It is generally observed that the spouses seeking divorce decide to divide the property by discussion. If essential, they take the assistance of a neutral third party such as a mediator. However, if the above 2 steps fail, the last resort is to permit the court to resolve the property division. The court adheres to the state divorce laws to settle this dispute.

If any spouse opts to hide property from the court with an objective of preventing it from getting divided, this is considered an illegal act. One must not mistake property division to be a physical division. Instead, the court confirms that each spouse is allocated a specific percentage of the total valuation of the property. This may be in the form of assets, debts and personal property.

Principles of Property Division in Divorce Proceedings

Community Property Division

The gross property of a married individual is classified into the following two types.

• Separate Property
• Community Property

After the divorce, each spouse retains his/her separate property. The community property is divided equally amongst the spouses i.e. in a 50:50 proportion. These principles are observed in the following states.

• Puerto Rico
• Wisconsin
• Washington
• Texas
• New Mexico
• Nevada
• Louisiana
• Idaho
• California
• Arizona
• Alaska

• The entire property (earnings and assets) that has been collected in marital life is divided in an equitable fashion. This does not imply a 50:50 division
• In some cases, the judge may issue orders that one spouse should utilize his/her separate property in order to ascertain a fair and equitable property division
• All the states in the United States (except those mentioned under community property division) adhere to equitable property division

• Let us assume the following scenario
  • The residence is the separate property of one spouse
  • The couple does not have any children This spouse has the legal right to ask the other partner to leave this residence

• Let us consider the following condition
  • The couple has a child(ren)
  • One spouse offers the child(ren) primary care and spends most of the time with the child(ren) This spouse remains in the marital residence along with the child(ren)

• This third situation is rather tricky
  • The couple does not have a child(ren)
  • The couple owns the residence together In such a case, none of these spouses posses the legal right to ask the other to leave. Either of the spouses may ask the other to leave, but can not make it mandatory. If the spouses fail to resolve the issue amongst them, the court issues the necessary orders during divorce proceedings. The spouses can also request for a temporary order regarding this issue

• Some people adopt the extreme method of claiming domestic violence simply to remove the other spouse from the residence. After the judge has been informed of this violence, the judge asks the spouse claiming violence to leave the residence. Hence, it is recommended that if a spouse believes him/her to be a victim of domestic violence, this spouse must call the local domestic violence hotline

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