As a couple goes through the divorce process, one of most important tasks (on the legal end) is splitting up the property. A judge will decide who receives which belongings, and what portion they will receive. Your divorce attorney will be able to advocate on your behalf, but educating oneself on the terminology surrounding division of marital property is important for anyone obtaining a divorce.
Each state falls into one of two categories: Community Property state, or Common Law state
Common Law State
Most states (all but 9) fall under the common law category. The common law system of property ownership is fairly simple in that it is largely based on whose name is documented as the title holder. For example, if only the husband's name is on the registration document for the car, the car belongs to the husband. However, when the title includes the name of both spouses, each spouse owns the property equally. In the case of dual ownership, the courts further divide the property in to one of two other categories: joint tenancy or tenancy in common. If the property is shared in joint tenancy, each of the parties equally own the party in its entirety. This means that when one spouse dies, the other spouse has the right of survivorship, meaning he automatically becomes the sole owner of the property. If the property is shared as tenants in common, each spouse owns one half of the property. This means that upon death, one spouse may devise her half of the property to someone else through a will.
Community Property State
As for the other 9 states, more restrictive rules apply. These states are Arizona, Idaho, Nevada, California, Louisiana, Texas, New Mexico, Wisconsin, and Washington (Alaska allows for optional community property status by choice). Community property states provide that all possessions, money, and debts are community property accumulated during the marriage, meaning both the husband and wife share equal ownership in the property. In the event of death of one spouse, the surviving spouse will automatically receive the deceased spouse's share of the property, unless he or she devises it to another person in a will.
It is important to note that property or money inherited by only one spouse is not automatically shared by both spouses. An inheritance belongs solely to the one who has inherited the property.
In the event that a couple moves from a common law state to a community property state at some point during the course of their marriage, states will usually treat assets acquired during their stay in a community property state as community property and assets acquired during their stay in a common law state as separate property. However, this practice is not followed in all states. Consulting an experienced divorce attorney is recommended for those concerned about division of marital assets.
For more information on the division of marital property, feel free to contact The Law Office of Bradley R. Tengler in Rockford, IL at 815-981-4859 for a free consultation. Please note, the above does not constitute legal advice. Please discuss your specific rights with an attorney in your own jurisdiction.