Property in a Divorce

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What kinds of things are property?

Property is anything you own. It includes:

  • Real property, such as buildings and land, and
  • Personal property, such as money in cash or in a financial institution, furniture, jewelry, automobiles, etc.

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What happens to our property in a divorce?

It depends. If it is property that you acquired during your marriage, called marital property, the court will try to divide the value of the marital property between you equally.

If it is your non-marital property, you will continue to be the legal owner.

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What is the difference between marital and non-marital property?

Marital property is property that:

  • Was obtained during your marriage (even if the title is in only one of your names),
  • Was given to both of you as a gift, or
  • You inherited together.

Non-marital property is property that:

  • You already had when you got married, or
  • You inherited or received as a gift individually. (If your spouse says the property was given to both of you, you will have to prove that it was given only to you.)

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Does the court divide marital property 50-50?

Usually, but not always. The court may give one spouse more marital property than the other if it thinks that it would be fair based on the facts of your case.

To decide, the court will consider many factors, including:

  • Each spouse's financial situation, including income, spousal maintenance, and non-marital property,
  • Each spouse's contribution to their marital property,
  • Which spouse will stay in the marital home, if there are children, and
  • If a spouse improperly destroyed marital property after you separated.

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What if I do not agree with what my spouse says is non-marital property?

Either spouse can ask for a court hearing to decide what property is marital, and what is non-marital.

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What about property from after the separation, but before the divorce is final?

In most cases, property or debts acquired after the established date of separation belongs to the person that got it.

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Will I get half of each asset?

Probably not. The court will look at the value of all your assets. Often, one spouse keeps the home, and the other gets other property, like cars, bank accounts, or other assets. Or the house could be sold, and the spouses would split any profit. The court tries to make the total value of all assets that each spouse gets equal, not cut the specific assets in half.

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How do we know the value of our home?

It depends on the equity, value, and other things, like market conditions. The court will order an appraisal if you and your spouse cannot agree on the value. This can be complicated. If you own real property or a business, it's best to talk to a lawyer.

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Will the court allow us to divide our property the way we want to?

Yes. If your agreement is fair, the court will probably approve it. If your agreement is not 50-50, you should each explain to the court why you agreed to an uneven split.

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Reviewed August 2009