If you are in a divorce now – or believe you will be soon – you may wonder how your property will be divided. One common misconception is that every item of property is divided equally, 50% to one spouse and 50% to the other. Another fairly common but mistaken notion is that the spouse who is at fault – for having committed adultery, for example – will be punished and receive far less of the property than will the innocent spouse.
While there may be a smidgen of truth to these ideas, on the whole that’s not how property division works. What’s important to keep in mind is that if the two spouses reach an agreement between them on how to divide their property then the Judge will almost always follow that agreed upon division. But if the two sides can’t agree then the Court will have to decide how to divide the property and, when it does so, it will follow some basic principles of the law.
The first is that the Court can divide only the community property. Community property is what a married couple owns together by virtue of being married but it doesn’t include property a spouse owned before marriage or received during marriage by gift or inheritance. That’s the separate property of that spouse and the law says it belongs solely to that spouse.
As for the community property, the law says that it has to be divided fairly having regard for all of the relevant circumstances. Usually, a “fair” division tends to be close to 50-50 but it need not be exact and it is usually accomplished by a division of the net value of the community estate not of each separate asset. For example, a couple may own as community property a house with equity of $50,000.00, bank accounts with $10,000.00 in them, cars with equity of $15,000.00 and retirement accounts totaling $75,000.00. That’s a value in the community estate of $150,000.00 so the Court might decide that “fair” means awarding $75,000.00 to one spouse and $75,000.00 to the other but it could accomplish that by either dividing everything 50-50 or by giving one spouse all of the retirement and giving the other all of the house, bank accounts and cars.
The Court can also vary from 50-50 if it believes that it’s fair to do so. For example, if one spouse earns $200,000.00 a year but the other spouse earns only $20,000.00 a year then the Court might well decide that it’s fair to give the lower earning spouse more of the community estate. Similar considerations exist where there are differences between the spouses based on their ages, states of health, sizes of their respective estates, who has custody of any minor children, etc.
Finally, while Courts can divide a community estate unequally in favor of an innocent spouse (in a case in which the other spouse is at fault in the divorce) we don’t normally see a significantly unequal division based solely on fault. In fact, the more unequal divisions tend to revolve around economic disparities between the spouses. That being said, every case is unique, and your best bet is to hire an experienced family law attorney to assist you.