At the end of a marriage, ownership of property largely depends on where the couple reside. Most states in the US operate common law property while just 9 states are marital (community) property states. Most couples are unaware of these distinctions till it is time to distribute the family property.
Marital property laws are enacted to protect the rights of spouses in the event of a divorce or death. How a couple’s property will be distributed depends on whether the couples live in a common law property state or community property state.
Which States Enforce Marital Property Laws?
Marital property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. They follow specific rules which distributed marital property equally between the partners in the event of a divorce.
Marital properties include:
- Asset acquired during the marriage by either couple.
- Property purchased with the earned money by either couple
- Separate property that has become undistinguishable from the community property.
These assets are shared 50-50 between the husband and wife. This includes every property acquired during the course of the marriage, plus every debt accumulated during the same period.
In essence, every debt or asset acquired before or after the marriage period is considered separate property. They are therefore owned by the spouse that acquired them except where the spouse in question decides to voluntarily share the said property. Separate property includes –
- Property inherited by a spouse
- Property owned by one spouse before the marriage
- Property given as gift to a single spouse before or during the marriage
A spouse may also pool their personal resources together into the community property funds.
However, neither spouse has the right to tamper with any portion of the shared property without the consent of the other spouse.
How is property distributed during separation or death?
Unless couples reached a consensus prior to the marriage on how their shared property is to be distributed, such as with a prenuptial agreement, they will follow the method below.
At the death of a spouse, the deceased’s half of the marital property goes to the other spouse. Some marital property states provide ‘community property with the right of survivorship’. In such a situation, the title or deed to a property jointly held by the couple passes to the surviving spouse at the death of the other spouse without court intervention.
Distribution of separate property is dependent on the deceased’s will. In the absence of a will however, probate will be used.
In the event of a divorce, or legal separation, the community property is shared 50/50 while each spouse’s keep their separate properties.
In certain unique situations like the distribution of a home where it is not practicable to divide the home in two, such property can be expressly awarded to one spouse. However, the other spouse still gets half the economic value of that property.
Some exceptions to the 50-50 rule may occur on the grounds of:
- Educational debts
- Individual tort liability
- Negative community.
With the variety of laws followed by the various state courts, distribution of property at the end of a marriage can be a harrowing experience. It might be easier with the assistance of a family lawyer.