Nolo's Essential Guide to Divorce - Emily Doskow [106]
Only California, Louisiana, and New Mexico always divide property equally. In Idaho, Nevada, and Wisconsin judges start with a presumption that property should be divided equally-but a spouse who wants a different outcome can argue for one, and may be able to convince the judge.
In Arizona, New Mexico, Texas, and Washington, courts are required to give each spouse a "fair" share of the community property. In those states, fair usually means equal or something close to itotherwise, there wouldn't be much meaning to the concept of community property.
Equal division doesn't mean that every single asset has to be split in half-that's just not practical (or desirable, usually). The court just makes sure that when everything is totaled up each spouse ends up with property of equal value.
Just because community property is distributed more or less equally to the spouses, it doesn't mean there won't be any arguments about who gets what. It does mean that the biggest fights are usually about whether certain items are community or separate property, and about the value of certain items of property.
If You Moved From a Non-Community Property State
What do you do if you got married and acquired a bunch of property in a non-community property state, and then moved to a community property state, where you're now getting divorced?
Property that you and your spouse bought in your old state and still own is called "quasi-community property." At divorce, it is treated just like community property. For example, if you purchased a car in a noncommunity property state with joint funds, but put title in only one spouse's name, that spouse would own the car as separate property at divorce in that state. But if you moved to California with the car and then divorced, the car would be considered quasi-community property, and its value divided equally at divorce.
Non-Community Property States: Equitable Division
In non-community property states, while you're married you own the income you earn separately. If you have property in your name, you also own it and have the right to manage it during the marriage, even if both of you paid for it or were given it. But at divorce, judges do not simply give each spouse the property held in his or her name. To do so could lead to obviously unfair results in some circumstances. For example, say a couple decides that the wife will stay home to raise their children, and the husband deposits his paycheck into a hank account that is in his name only. If he were allowed to keep all that money at divorce, the wife's contribution to the family would he completely ignored.
Equitable distribution is intended to ensure that a spouse whose name isn't on the title still gets a fair share of the couple's property. It rests on the premise that each spouse contributes to the marriage and to the acquisition of property and income, even property and income that has only one spouse's name on it.
The Basic Rule
The judge's job is to divide your property "equitably"-meaning in a fair way, but not necessarily equally. Equitable division may mean that one of you might be awarded property in lieu of support-especially if you were married for a long time. Instead of ordering long-term spousal support, judges sometimes prefer to award property that will serve the same purpose-giving the dependent spouse a standard of living comparable to that of the marriage, but without requiring ongoing ties between the former spouses.
In a few equitable distribution states (listed below), the judge starts with a presumption that assets should be divided equally. Then the judge hears arguments from both spouses about why property shouldn't be divided equally. For example, one spouse might argue that he or she has significantly more financial need than the other. The custodial parent might ask to keep the house, even though it's worth more than the rest of the assets together, because it's in the children's best interest to stay in the family home.
States That Begin With a Presumption of Equal