Property Division in Community and Non-Community Property States


When going through a divorce, one of the most critical aspects that couples must address is the division of marital property. This process can be complex and emotionally charged, as it involves determining how assets, property, and money acquired during the marriage should be distributed between the spouses. Depending on the state in which you reside, the rules for property division can differ significantly. In this article, we will explore the differences between community property states and equitable distribution states, shedding light on the various approaches to dividing marital property.

Property Division in Divorce

What is Marital Property?

Marital property encompasses all assets, property, and money acquired during a marriage. In the event of a divorce, this property becomes subject to distribution according to the guidelines set forth by the state. If the divorcing couple cannot reach an agreement on their own, the court steps in to decide how to divide the marital assets fairly.

Distribution Process by State

The distribution process varies between community property states and equitable distribution states. Let’s delve into the specifics of each approach.

Community Property States

Overview of Community Property States

There are nine community property states in the United States, including Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Additionally, Puerto Rico follows the community property system. In these states, marital property is divided equally, with each spouse receiving 50% of the assets.

Distribution Approach

Courts in community property states typically follow the 50/50 rule when dividing marital property. However, certain circumstances may warrant deviations from this strict split. For instance, if one spouse engaged in activities to harm the other, the court might make adjustments to the distribution. Nevertheless, most couples in community property states can expect an equal division of their marital assets.

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Equitable Distribution States

Understanding Equitable Distribution

In contrast, equitable distribution states employ a different approach to property division. These states focus on ensuring a fair and equitable distribution of marital property rather than a strict 50/50 split. The courts consider various factors to arrive at a distribution that they deem fair for both parties involved.

Factors Considered in Division

Some of the factors that courts may consider in equitable distribution states include:

  • The total debts of the marriage
  • Financial contributions of each spouse during the marriage
  • Potential earning capacities of both spouses after divorce
  • Tax implications of property division
  • Non-financial contributions to the marriage
  • Any wrongful conduct by one spouse

What is Considered Community Property?

Items Included in Community Property

In community property states, community property refers to any asset or debt acquired during the marriage. This includes properties like houses, cars, and bank accounts, among others. All items that fall under community property must be divided equally between the spouses during divorce.

Illustrative Examples

For instance, if you own a house together with your spouse and reside in a community property state, the court may not divide the house physically. Instead, they might require one spouse to buy out the other for their share of the property’s value.

What is Considered Separate Property?

Exceptions to Marital Property Rule

Both community property and equitable distribution states recognize the concept of separate property. Separate property refers to assets and debts acquired before the marriage, inheritances, and gifts received by one spouse during the marriage, among other specific categories. This property is not subject to division during divorce.

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Importance of the Date of Separation

The date of separation holds significance, as it marks the point when the intention to remain married ends. Property and debts acquired after the date of separation are generally considered separate property, even if the couple is still legally married.

Property Division in Community Property States

50/50 Division of Marital Property

In community property states, the court aims to split marital property equally, with each spouse receiving half of the assets. While this may involve some challenges, especially when dividing tangible assets like houses, courts strive to maintain fairness in distribution.

Case Study: Property Division in California

California, being the largest community property state, presents an interesting example. In cases where it’s not feasible to split a property physically, the court might mandate the sale of the house and equal distribution of the proceeds. Alternatively, if one spouse wants to keep the marital home, they can buy out the other by paying their share of the property’s value.

Property Division in Equitable Distribution States

Fair and Equitable Distribution

Equitable distribution states prioritize fairness rather than strict equality. This means that property division can vary depending on the specific circumstances of the case.

Case Study: Property Division in Denver

Suppose you live in an equitable distribution state like Denver. If you are the primary breadwinner and decide to keep the house, the court may require you to assume the entire mortgage while offering your spouse a fair buyout. This approach considers the financial positions of both spouses to achieve a just distribution.

The Issue of Commingled Separate Property

Consequences of Commingling

Commingled separate property refers to separate assets that have been mixed with marital assets. In most cases, commingled separate property is treated as marital property, losing its status as separate.

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Understanding Communalization

If, for example, you receive an inheritance and deposit the funds into a joint bank account with your spouse, it becomes challenging to distinguish these funds as separate property. Consequently, it may be subject to distribution during divorce.


Divorce involves navigating various complex issues, and property division is among the most significant. Depending on your location, your marital property may be subject to different rules and approaches to division. Community property states aim for equal splits, while equitable distribution states prioritize fairness. Understanding these differences can help you better prepare for the divorce process and protect your assets.


  1. Can we decide how to divide our property ourselves?Yes, you and your spouse have the option to reach an agreement on property division outside of court. This can save time, money, and stress.
  2. What if we can’t agree on the division of our assets?In such cases, the court will step in to decide how to divide the marital property based on the applicable state laws.
  3. Is property division the same in all states?No, property division rules vary significantly between community property states and equitable distribution states.
  4. Can a prenuptial agreement affect property division?Yes, a prenuptial agreement can specify how certain assets should be divided in case of divorce, which can impact the distribution process.
  5. What should I do if I need legal guidance during my divorce?If you need assistance with property division or any other aspect of your divorce, consider seeking legal guidance from professionals specializing in family law.

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