Divorce and Property Division




Divorce and Property Division seems like a daunting task. I am going to help you make your best judgment after you review some pertinent info about marital property and family law. You may or may not end up using attorneys, however, you should find out how your state divides property before you sit down with your ex. Divorce and Property Division law does change from state to state, as some states are more lenient if there is fault found in the divorce.

What is marital property?
DUH--of course, it is property that is acquired during the marriage.

What is non-marital property?
It is property that was acquired by one party before the marriage, or it was given to one of the parties exclusively--like an inheritance. (PS. watch out for commingling)

What is commingling?
This is when one party's inheritance that becomes mixed with marital assets, instead of being kept separate. EXAMPLE: Inheritance money is used to put a down payment on a house, repair the home, or is kept in a joint checking account with a spouse. (PS. commingling=BAD if you are getting divorced)

The most imporant question you must ask yourself is--What type of state do I live in? Is it an equitable distribution state, or a community property state? To find out, visit the links here. Then, come back.

After you know more about your divorce and property, you can then complete the Property Settlement Agreement, which is the legal document that defines your property rights and how you have decided to divide the property between you. You can decide all of the important info on your own and tell the court what you've decided in a no contest divorce, or, you can go to court and allow the judge to decide for you in a contested divorce.

Divorce and Property is THE most important topic for divorcees.

It's about 50-50 for a home or any shared property, any way you look at it. Unless there are special circumstances. So, don't allow a soon-to-be-ex-spouse to push you around saying that he/she should get more than that, unless there are seriously valid reasons. If it were to go before the court, the court would decide for you, and it's a big time waster to argue about a 70-30 split when it's a moot point (like I said, unless one party gave up an inheritance or some major asset to provide for the marriage).

Property Settlement Agreements

Because every couple must deal with divorce and property division (even if there are only a few assets or liabilities), a couple MUST write up (using the law library's forms or divorce forms online) a property settlement agreement, marital settlement agreement, or a settlement agreement at any time until the divorce is finalized. It is required as part of the divorce. The name changes depending on where you live. The couple must make it clear that all major property division issues have been resolved and divided, such as: property, child visitation, child custody, alimony, and any debt division that is required.

Remember, marital property may include:

  • Your home,
  • Any other property you own,
  • Pensions,
  • IRAs,
  • 401k, 403b,
  • Stocks,
  • CDs/Mutual funds,
  • Bank accounts,
  • Anything in a safe deposit box,
  • Art,
  • A business

There may be more accounts to include in your property division--in divorce law, you should always check with an attorney to make sure you've got it covered.
Have a legal problem? Come to LegalMatch and find pre-screened, qualified lawyers in your local area.

See my attorney page for great attorney info also!

A NOTE about DEBT: Debt will also be divided at your divorce hearing. So, it's best to work out ahead of time who will accept which debts, or what percentage of each. For more information on Debt, read the Debt Series, which tells you how to divide it fairly, and if there is a lot of it, what you can do to make your life easier. Make your plan, but also get it in writing in the property settlement agreement--asap. People can change their minds FAST during the divorce process. (Using a service can make that easier if you don't know how to write it up, like Legalzoom or Rocketlawyer.)

Why are the Children included in the Property Settlement Agreement?

Because you now must divide their time with each parent. You should get it all spelled out:

Visitation Plans: What are your plans? How much time with each parent? The Our Family Wizard helps parents to set up their plans, and keep scheduling straight. Simple & effective custody plans. Less confusion, more parenting.

Real-Divorce Recommends:

Real-Divorce Recommends: Legalzoom includes the Property Settlement Agreement and paperwork for children when filing for divorce, so I would highly recommend that. The fee is for Legalzoom to prepare the documents for you.



With the RocketLawyer fee, you get access to any legal documents you may need, not just online divorce forms. So, you could get the PSA, custody paperwork, will, living will, and online divorce all in one place for a small flat fee. This is DIY legal. Save up to 90% off your legal documents

Our Family Wizard, because it helps keep all the documents straight.

Return from Divorce and Property to Divorce Paperwork

Read the other articles in the Divorce Paperwork Series about Divorce and Property Division

  • Equitable Distribution

  • Community Property

  • Real-Divorce Sitemap





  • New! Comments

    Have your say about what you just read! Leave me a comment in the box below.