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Divorce Property Rights


The divorce property rights are different in one state from the other and the local court is the final authority to divide the property between the two spouses during the divorce. When it comes to division of the property the most crucial part is to determine which property to divide? Generally, the properties can be classified into two types –marital property and separate property. The properties that were acquired by the couple during the marriage are considered as the marital property. On the other hand, properties that were acquired by the individual before the marriage are considered as separate property. There are a few procedures that are followed by the family courts in United States for dividing the properties – the common law property, community property and equitable distribution.

Common law property –

Few states in the United States divided the properties amongst the divorced couples in this process. By this law the property is awarded to whom the legal right of the property was conferred during the purchase. That means the property will to go to the person in whose name the property was registered. If the property was jointly registered in the name of both the spouses then the property is equally divided among both the spouses. But this law is only applicable for the properties that were acquired during the time of the marital relationship. Properties that were separately owned by either of the spouses are not considered in this law.

Community property –

The states which follow the community property law consider all the properties that were acquired by the couple during the time of the marriage as community property. Moreover, those properties that were bought with the earnings of that period are also considered as the community properties. While dividing these community properties, the court equally divides the property amongst the spouses. In some states however, the spouse who is initiating the divorce or deemed to be at fault for the divorce might get less share of the property.

Equitable distribution –

According to this law, division of the property between the spouses after a divorce is done by equally dividing all the marital properties and earnings. But that does not necessarily imply that either of the spouses will get exactly 50% share of the property. As a matter of fact, the court can order as much as 2/3 of the property to the higher earning spouse and as low as 1/3 of the spouse to lower earning one. The spouse who is a defaulter in the divorce might also get the lower percentage of share in the property.

These are primarily divorce property rights that are followed by the courts while distributing the marital properties between the divorced spouses. While distributing the properties there are several other factors that are also considered by the court. These are the income of the spouses, age and health conditions of the spouses, any pre-nuptial contract that might exist between the couple, duration of the marriage and role of the spouses as homemaker and the tax consequences.


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