Often, a couple that is divorcing will decide how to divide their property and debts themselves (perhaps with the help of a mediator), rather than leaving this up to a judge. However, in the event that they cannot reach an agreement, the dispute is submitted to the court, which will use state law to divide the property. The division may not be physical but rather based on a percentage of the whole. Each spouse gets personal property, assets, and debts, the total net worth of which add up to his or her percentage. Obviously, it is illegal for either spouse to hide assets in order to shield them from property division.
There are two basic schemes of division: community property or equitable distribution.
In Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin and Puerto Rico, all property of a married person is classified as either community property (owned equally by both spouses) or the separate property of one spouse. Community property is generally divided equally between the spouses, while each spouse keeps his or her separate property.
Assets and earnings acquired during a marriage are equitably divided (not equally, but fairly). Typically, two-thirds of the assets go to the higher wage earner and one-third to the other spouse. This practice is followed in all places except the community property states listed above.
There are some general rules for determining what property is community and what is not:
All earnings during marriage and everything acquired with those earnings are considered community property. Debts incurred during the marriage are also community property unless the creditor was looking to the separate property of one spouse for payment.
Separate property of one spouse
Gifts and inheritances are given to a particular spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested during the marriage are all considered the separate property of that particular spouse. Additionally, property purchased with the separate funds of a particular spouse remains the property of that spouse. Also, a business owned by one spouse prior to the marriage remains his or her separate property during the marriage. However, some portion of it may be deemed community property, if the business value increased over the course of the marriage or both spouses worked at it. Finally, if separate property is mixed with community property during the marriage, it may become community property, either in part or whole, depending on the circumstances.
Property purchased with a combination of separate and community funds
If a spouse is able to show that property was purchased with both community and separate funds, then it remains a part community and part separate property. In general, separate property mixed together with community property becomes community property.
Finally, one of the most important issues is who gets to live in the house during the divorce. When children are involved, the house usually is retained by the spouse who spends the most time with the children or is their primary caregiver. If there are no children involved and the house is the separate property of one spouse, that spouse may ask the other to leave. The situation is more complicated if there are no children and the home is owned jointly, as neither has the legal right to ask the other to leave.
While one spouse can ask another to leave, he or she does not have to go. If one spouse changes the locks or somehow prevents entrance, the other can contact the police who will order the home to be opened. If the home is owned by two people, the only way that one can force the other to leave is if domestic violence has been committed and a judge grants a restraining order.
Claiming that domestic violence has occurred, in order to get a spouse, is an extreme tactic that should NEVER be done. The spouse who falsely claimed violence may be asked to leave the home and will undoubtedly be in the bad graces of the judge for the remainder of the trial.