Please see specific state for details and/or
differences.
ALABAMA
| ALASKA | ARIZONA | ARKANSAS
| CALIFORNIA | COLORADO
| CONNECTICUT | DELAWARE
| FLORIDA
GEORGIA | HAWAII | IDAHO
| ILLINOIS | INDIANA | IOWA
| KANSAS | KENTUCKY | LOUISIANA
| MAINE | MARYLAND
MASSACHUSETTS | MICHIGAN
| MINNESOTA | MISSISSIPPI
| MISSOURI | MONTANA | NEBRASKA
| NEVADA
NEW HAMPSHIRE | NEW
JERSEY | NEW MEXICO | NEW
YORK | NORTH CAROLINA | NORTH
DAKOTA | OHIO
OKLAHOMA | OREGON | PENNSYLVANIA
| RHODE ISLAND | SOUTH
CAROLINA | SOUTH DAKOTA | TENNESSEE
TEXAS | UTAH | VERMONT
| VIRGINIA | WASHINGTON
| WEST VIRGINIA | WISCONSIN
| WYOMING
ALABAMA
The court�s division of property in a divorce need not be equal, but it must be
equitable. In making an equitable division of property, the court considers all relevant
factors including the financial condition of the parties, their ages and health, their station
in life, the length of the marriage, and the conduct of the parties. Marital misconduct, or
fault, is one of the factors to be used by the court in making a division of property. The
court may not take into consideration any property acquired prior to the marriage or by
inheritance or gift unless the judge finds from the evidence that the property, or income
produced by the property, has been used regularly for the common benefit of the parties
during their marriage.
The judge may exercise her discretion in awarding to either
spouse the present value of any future or current retirement benefits in which a spouse may have a vested
interest or may be receiving on the date the action for divorce is filed, provided that the
following conditions are met: 1) The parties have been married for at least ten years during which the
retirement was being accumulated; 2) the court shall not include in the marital estate the
value of any retirement benefits acquired prior to the marriage; and 3) the total amount of
the retirement benefits payable to the non-covered spouse shall not exceed 50 percent
of the retirement benefits that may be considered by the court. Alabama Code 30 - 2 - 51.
ALASKA
The court shall order a division of property between the parties, including
retirement benefits whether joint or separate, acquired only during marriage, in a just
manner and without regard to which of the parties is at fault. However, the court in
making the division may invade the property of either spouse acquired before marriage
when the balancing of the equities between the parties requires it. The division of
property must fairly allocate the economic effect of divorce by being based on
consideration of the following factors: 1) the length of the marriage and standard of
living of the parties during the marriage; 2) the age and health of the parties; 3) the
earning capacity of the parties including their educational backgrounds and employment
skills and custodial responsibilities for children during the marriage; 4) the financial
condition of the parties including the availability and cost of health insurance; 5) the
conduct of the parties including whether there has been unreasonable depletion of
marital assets; 6) the desirability of awarding the family home to the party who has
primary physical custody of children; 7) the circumstances of each party; 8) the time and
manner of acquisition of the property in question; and 9) the income producing capacity
of the property and the value of the property at the time of division.
AS 25.24.160.
ARIZONA
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of another
including, but not limited to, life insurance proceeds. Individual property includes
property exchanged for other individual property or purchased with the proceeds from
individual property. Property can be a combination of community and individual. For
example, a business owned by one spouse before the marriage would remain that
spouses individual property, but the other spouse could argue that a portion of the value
of the business should be considered a part of community property because the value
was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
According to Arizona law, all property acquired by either husband or wife during
the marriage, except property acquired by gift or inheritance, is the community property
of husband and wife. All property owned by a spouse before marriage, and property
acquired after the marriage by gift or inheritance, and also increased rents and profits of
such property, is the separate property of such spouse. ARS �25-211 and 25-213.
In a proceeding for dissolution of marriage, the court shall award each spouse�s
sole and separate property to that spouse. The court shall also make an equitable
division of the community, joint tenancy and other property held in common by the
spouses. Property division is made without regard to marital misconduct or fault.
Property acquired by either spouse outside of the state of Arizona shall be deemed to be
community property if the property would have been community property if acquired
within the state. In dividing the property, the court may consider excessive or abnormal
expenditures, destruction, concealment, or fraudulent disposition of community property.
ARS �25-318.
ARKANSAS
At the time the court enters a divorce decree, all marital property shall be
distributed one-half to each party, unless the court finds such a division to be inequitable.
In that event, the court shall make some other division that the court deems equitable,
taking into consideration the following factors: 1) the length of the marriage; 2) age and
health and station in life of the parties; 3) occupation of the parties; 4) amount and
sources of income; 5) vocational skills 6) employability; 7) assets and liabilities and the
needs of each party and the opportunity of each for further acquisition of assets and
income; 8) contribution of each party in the acquisition and appreciation of marital
property, which includes services as a homemaker; and 9) the federal income tax
consequences of the court�s division of property. When property is divided pursuant to
these considerations, the court must state its basis and reasons for not dividing the
marital property equally between the parties.
Marital property means all property acquired by either spouse, subsequent to the
marriage, except 1) property acquired prior to the marriage, or by gift or inheritance to
one party; 2) property exchanged for property acquired prior to the marriage or by gift or
inheritance; 3) property acquired by a spouse after a decree of divorce from bed and
board (separation); 4) property excluded by valid agreement of the parties; 5) the
increase in value of property acquired prior to marriage by gift or inheritance, or in
exchange therefor; 6) benefits received from a workers compensation claim or personal
injury claim or social security claim; and 7) income from property owned prior to the
marriage or from property acquired by gift or inheritance.
All non-marital property shall be awarded to the owner of that property, unless the
court shall make some other division that the court deems equitable, taking into
consideration the above factors, in which event the court must state in writing its basis
and reasons for not returning the property to the spouse who owned it at the time of the
marriage or acquired it by gift or inheritance.
Ark. stat. Ann. 9-12-315.
CALIFORNIA
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of another
including, but not limited to, life insurance proceeds. Individual property includes
property exchanged for other individual property or purchased with the proceeds from
individual property. Property can be a combination of community and individual. For
example, a business owned by one spouse before the marriage would remain that
spouse�s individual property, but the other spouse could argue that a portion of the value
of the business should be considered a part of community property because the value
was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
California law provides that a husband and wife have equal interests in
community property. Except as otherwise provided by statute, neither husband nor wife
has any interest in the separate property of the other. All property acquired by a married
person during the marriage is community property. Separate property of a married
person includes all of the following: 1) all property owned by the person before
marriage;
2) all property acquired by the person after marriage by gift or
inheritance; and 3) profit
from these types of property. A married person may, without the consent of the person�s
spouse, convey the person�s separate property. The earnings of a person while living
separate and apart from the person�s spouse, are the separate property of that person.
Money and other property received by a married person for damages for personal
injuries is community property if the cause of action for the damages arose during the
marriage. Married persons may by agreement transfer or transmute community property
to separate property of either spouse, transmute separate property of either spouse to
community property, or transmute separate property of one spouse to separate property
of the other spouse. Cal. Fam. Code �751, 752, 760, 770, 771, 780, and 850.
Except upon the written agreement of the parties or on an oral stipulation of the
parties in open court, the court shall make an equal division of community property.
Property acquired in joint form by the parties during marriage, including property held in
tenancy in common or joint tenancy, is presumed to be community property. This
presumption may be rebutted by either 1) a clear statement in the deed or other
documentary evidence of title that the property is separate and not community
property;
or 2) proof that the parties have made a written agreement that the property is separate
property.
Cal. Fam. Code �2550 and 2581.
COLORADO
The court shall award to each spouse his separate property and shall divide the
marital property, without regard to marital misconduct, in such proportions as the court
deems just after considering all relevant factors, including: 1) the contribution of each
spouse to the acquisition of the marital property including the contribution of a spouse as
homemaker; 2) the value of the property awarded to each spouse; 3) the economic
circumstances of each spouse including the desirability of awarding the family home to
the spouse having custody of children; and 4) any increases or decreases in the value of
the separate property during the marriage or the depletion of the separate property for
marital purposes. Marital property means all property acquired by either spouse
subsequent to the marriage, except: 1) property acquired by gift or
inheritance; 2)
property acquired in exchange for property acquired prior to the marriage or an
exchange for property acquired by gift or inheritance; 3) property acquired by a spouse
after a decree of legal separation; and 4) property excluded by valid agreement of the
parities.
All property acquired by either spouse subsequent to the marriage and prior to a
decree of legal separation is presumed to be marital property.
Property shall be valued as of the date of the decree or as of the date of the
hearing by the court to order disposition of property. CRSA �14-10-113.
CONNECTICUT
The court shall make a just and equitable division of the property of the parties.
The court considers all factors, including: the length of the marriage; the causes for the
dissolution; the age, health, occupation, amount and sources of income, vocational skills,
employability, assets, liabilities and needs of each of the parties; and the opportunity of
each for future acquisition of capital assets and income. The court shall also consider
the contribution of each of the parties in the acquisition, preservation, or appreciation in
value of their respective estates.
C.G.S.A. �46b-81.
DELAWARE
The court shall make an equitable division of the marital property of the parties
without regard to marital misconduct, in such proportions as the court deems just after
considering all relevant factors including: 1) length of the marriage; 2) any prior marriage
of the party; 3) age, health, station in life, amount and sources of income, vocational
skills, employability, liabilities and needs of each of the parties; 4) whether the property
award is in place of or in addition to alimony; 5) the opportunity of each for future
acquisitions of assets and income; 6) the contribution or dissipation of each party in the
acquisition or appreciation of the marital property including the contribution of a party as
homemaker or husband; 7) the value of any property being awarded to a party as his or
her separate property; 8) the economic circumstances of each party at the time the
division of property is to become effective, including the desirability of awarding the
family home or the right to live in the home for reasonable periods to the person with
whom the children will live; 9) whether the property was acquired by gift; 10) the debts of
the parties; and 11) tax consequences.
Marital property means all property acquired by either spouse subsequent to the
marriage, except 1) property acquired by an individual spouse by gift or inheritance (not
including gifts between the spouses), provided the gifted property is titled and
maintained in the sole name of the recipient spouse; 2) property acquired in exchange
for property acquired prior to the marriage; 3) property excluded by valid agreement of
the parties; and 4) the increase in value of property acquired prior to the marriage.
13 DCA �1513. FLORIDA
The court shall award to each spouse that spouse�s non-marital assets and
liabilities. The court makes an equitable distribution of the marital assets and liabilities.
The distribution should be equal unless there is a justification for an unequal distribution
based on all relevant factors, including: 1) the contribution to the marriage by each
spouse including contributions by a homemaker; 2) the economic circumstances of the
parties; 3) length of the marriage; 4) any interruption of careers or educational
opportunities of either party; 5) the contribution of one spouse to the career or education
of the other spouse; 6) the desirability of retaining any asset free from any claim or
interference by the other party; 7) the contribution of each spouse to the acquisition and
production of income or assets of the parties; 8) the desirability of retaining the marital
home as a residence for any dependent child; 9) the intentional dissipation or destruction
of marital assets after the filing of the Petition or within two years prior to the filing of the
Petition; or 10) any other factors necessary to do justice between the parties. The court
may provide for equitable distribution of the marital assets and liabilities without regard to
alimony for either party. After the determination of an equitable distribution of assets and
liabilities, the court shall consider whether a judgment for alimony shall be made.
FSA Stat. � 61.075. GEORGIA
The court shall make an equitable division of the property of the parties. Fault is
a factor which may be considered by the court when dividing the property. Divorce
cases in Georgia are heard by a jury, unless the parties waive a jury and have the case
heard by the judge only. If the case is heard by a jury, the jury�s verdict awards the
property. The judge then shall enter the judgment and decree and take such other steps
as are appropriate in the exercise of the courts equitable powers to carry out the jury�s
verdict. GC �19-5-13. HAWAII
Upon granting a divorce, the court may make a just and equitable division and
distribution of all property of the parties. The court may also allocate between the
parties, the responsibility for the payment of debts. The court shall take into
consideration the respective merits of the parties, the relative abilities of the parties, the
condition in which each party will be left by the divorce, the burdens imposed upon either
party for the benefit of the children, and all other circumstances of the case. The court�s
order for division of property and payment of debts shall be final and conclusive as to
both parties, subject only to an appeal as in other civil cases. Unless the divorce decree
specifically reserves the final division of property for further hearing, the division of
property in the decree is final. HRS �580-47 and 580-56. IDAHO
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of another
including, but not limited to, life insurance proceeds. Individual property includes
property exchanged for other individual property or purchased with the proceeds from
individual property. Property can be a combination of community and individual. For
example, a business owned by one spouse before the marriage would remain that
spouses individual property, but the other spouse could argue that a portion of the value
of the business should be considered a part of community property because the value
was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
Under Idaho law each party remains the owner of his or her sole and separate
property. Separate property is all property owned by either before the marriage, that
property acquired after the marriage by gift or inheritance, or property which either party
acquires with the proceeds from sale of property which is considered separate property.
IC �32-903.
All other property acquired after marriage by either husband or wife is community
property. The income of all property, separate or community, is community property
unless the parties have specifically provided otherwise in writing.
IC �32-906.
The court may divide community property and the homestead as follows--After
considering all of the facts and the condition of the parties, the court divides the
community property as the court deems just, after due consideration of all relevant
factors. Unless there are compelling reasons otherwise, there shall be a substantially
equal division in value, considering debts, between the spouses. The factors used by
the court to determine whether there should be an unequal division of community
property include the following: 1) duration of the marriage; 2) any anti-nuptial agreement
of the parties; 3) the age, health, occupation, amount and source of income,
employability, and liabilities of each spouse; 4) the needs of each spouse; 5) whether
apportionment of community property is in place of or in addition to spousal
maintenance; 6) the present and potential earning capacity of each party; and 7)
retirement benefits.
If a homestead has been selected from the community property, it may be
assigned to either party, either absolutely--provided such assignment is considered as a
part of the distribution of community property--or for a limited period--which is then
subject to future disposition of the court. The homestead may also be divided or be sold
and the proceeds divided. If a homestead has been selected from the separate property
of either party, it must be assigned to the owner of such separate property, subject to the
power of the court to assign it for a limited period of time for occupancy and use by the
other spouse.
IC �32-712. ILLINOIS
Marital property means all property acquired by either spouse subsequent to the
marriage. Non-marital property means all property acquired before the marriage,
acquired by gift or inheritance, acquired in exchange for property acquired before the
marriage or by gift or inheritance, or acquired by a spouse after a judgment of legal
separation, or property excluded by valid agreement of the parties. Income from
non-marital
property is also non-marital if the income is not attributable to the personal effort
of a spouse. The increase in value of non-marital property is also non-marital,
regardless of whether the increase results from a contribution of marital property,
non-marital
property, the personal effort of a spouse, or otherwise, subject to the right of
reimbursement - when a spouse contributes personal effort to non-marital property, that
spouse�s share shall be reimbursed from the share of the spouse benefiting from the
contribution. However, any such reimbursement must be retraceable by clear and
convincing evidence. The court may provide for reimbursement out of the marital
property to be divided or by imposing a lien against the non-marital property which
received the contribution.
Commingled and non-marital property are treated as follows, unless otherwise
agreed between the spouses. When marital and non-marital property are commingled
which results in a loss of identity of the contributed property, the classification of the
contributed property is transmuted to the estate receiving the contribution. If marital and
non-marital property are commingled into newly acquired property resulting in a loss of
identity of the contributing property, the commingled property shall be deemed
transmuted to marital property. The court still has the discretion to provide for a
reimbursement to compensate for the loss of the contributed property. No such
reimbursement shall be made with respect to a contribution which is not retraceable by
clear and convincing evidence.
After classifying property into marital and non-marital, the court acts as follows.
The court shall assign each spouse�s non-marital property to that spouse. Marital
property shall be divided in just proportions, without regard to marital misconduct, after
considering all relevant factors, including: 1) the contribution of each party to the
acquisition or increase or decrease in value of the marital or non-marital property
including the contribution of a spouse as a homemaker; 2) the dissipation by each party
of the marital or non-marital property; 3) the value of the property assigned to each
spouse; 4) the duration of the marriage; 5) the relevant economic circumstances of each
spouse including the desirability of awarding the family home to the spouse having
custody of the children; 6) any obligations and rights arising from a prior marriage of
either party; 7) any antenuptial agreement; 8) the age, health, occupation, sources of
income, vocational skills, employability, and needs of each of the parties; 9) the custodial
provisions for children; 10) whether the apportionment of property is in place of or in
addition to spousal maintenance; 11) the reasonable opportunity of each spouse for
future acquisition of assets and income; and 12) tax consequences of the property
division. Valuation of the property shall be done as of the date of trial or some other
date as close to the date of the trial as possible. If necessary to protect and promote the
best interests of children, the court may set aside a portion of the assets in a separate
fund or trust for their support and education.
750 ILCS 5/503. INDIANA
The court shall divide the property of the parties, whether owned by either spouse
prior to the marriage, acquired by either spouse after the marriage, or acquired by their
joint efforts, in a just and reasonable manner by: 1) division of the property in kind; 2)
awarding the property or parts of it to one of the spouses and requiring either spouse to
pay an amount in gross or in installments as may be just and proper; 3) ordering the sale
of the property and dividing the proceeds of the sale; or 4) ordering the distribution of
any retirement benefits payable after the dissolution. The court shall presume that an
equal division of the marital property is just and reasonable. However, this presumption
may be rebutted by a party who presents relevant evidence that an equal division would
not be just and reasonable. The court may consider the following factors: 1) the
contribution of each spouse to the acquisition of the property; 2) the extent to which
property was acquired by each spouse prior to the marriage or through inheritance or
gift; 3) the economic circumstances of each spouse at the time the division of property is
to become effective, including the desirability of awarding the family home or the right to
dwell in the family home for such periods as the court may deem just to the spouse
having custody of any children; 4) the conduct of the parties during the marriage as
related to the dissipation of any property; and 5) the earnings or earning ability of the
parties as related to a final division of property and final determination of the property
rights of the parties. If the court finds there is little or no marital property, it may award
either spouse a money judgment not limited to the property existing at the time of final
separation. However, this award may be made only for the financial contribution of one
spouse toward tuition, books, and laboratory fees for the higher education of the other
spouse. AIC �31-1-11.5-11. IOWA
The court shall divide the property of the parties in transferred title of the property
accordingly. The court shall divide all property, except inherited property or gifts
received by one party, equitably between the parties after considering all relevant
circumstances including: 1) length of the marriage; 2) property brought to the marriage
by each party; 3) the contribution of each party to the marriage which includes giving
appropriate economic value to each party�s contribution in homemaking and child care
services; 4) the age and emotional and physical health of the parties; 5) the contribution
by one party to the education or increased earning power of the other; 6) the earning
capacity of each party; 7) the desirability of awarding the family home or the right to live
in the family home to the party having custody of the children; 8) the amount and
duration of an order granting support payments to either party (alimony) and whether the
property division should be in place of such payments; 9) all other economic
circumstances of the parties; 10) tax consequences; and 11) all the factors the Court
deems relevant in each individual case. ICA Section 598.21. KANSAS
The court shall make a just and reasonable division of all property. The court
shall divide all property of the parties, whether owned by either spouse prior to the
marriage, acquired by either spouse after marriage, or acquired by joint efforts of the
spouses. The court may divide property in kind, award the property to one of the
spouses and require the other to pay a proper sum, or order a sale of the property and
divide the proceeds. In making a division of property, the court shall consider the
following fact ors: 1) age of the parties; 2) duration of the marriage; 3) the property
owned by the parties; 4) present and future earning capacities of the parties; 5) the time,
source, and manner of acquisition of property; 6) family ties and obligations; 7) any
award of spousal maintenance; 8) any dissipation of assets; and 9) such other factors as
the court considers necessary to make a just and reasonable division of property.
KSA �60-1610(b). KENTUCKY
In dividing property, the court shall assign each spouse�s
non-marital property to
him or her. The court shall also divide the marital property without regard to marital
misconduct in just proportions, considering all relevant factors including the following: 1)
contribution of each spouse to acquisition of the marital property which includes
contribution of a spouse as a homemaker; 2) value of the property awarded to each
spouse; 3) duration of the marriage; and 4) economic circumstances of each spouse
after the division of property is considered, including the desirability of awarding the
family home or the right to live there to the spouse with custody of the children.
Marital property means all property acquired by either spouse subsequent to the
marriage, except 1) property acquired by gift or inheritance; 2) property acquired in
exchange for property acquired before the marriage or by gift or
inheritance; 3) property
acquired by a spouse after a decree of legal separation; 4) property excluded by valid
agreement of the parties; and 5) increase in value of property acquired before the
marriage to the extent that such increase did not result from the efforts of the parties
during marriage. K.R.S. �403.190. LOUISIANA
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of
another, including, but not limited to, life insurance proceeds. Individual property
includes property exchanged for other individual property or purchased with the
proceeds from individual property. Property can be a combination of community and
individual. For example, a business owned by one spouse before the marriage would
remain that spouse�s individual property, but the other spouse could argue that a portion
of the value of the business should be considered a part of community property because
the value was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
Under Louisiana law, the property of married persons is either community
property or separate property. The system of principles and rules governing the
ownership of property of married persons in Louisiana is called the �matrimony regime.�
A matrimony regime may be legal, contractual, or partly legal and partly contractual. The
legal regime is the �community of acquets and gains� (in Louisiana law �acquets� means
acquisitions of property and �gains� means an increase in the value of property through
the common skill or labor of the spouses during the marriage). A contractual matrimony
regime refers to the fact that Louisiana law allows the parties to enter into an agreement
to modify or terminate the legal regime which would otherwise be established under
Louisiana law. Spouses are free to establish, by agreement, a regime of separation of
property or to modify the legal regime as provided by law. The provisions of the legal
regime that have not been excluded or modified by agreement of the parties retain the
full force and effect of Louisiana law. The legal regime of community of acquets and
gains applies to spouses domiciled in Louisiana, regardless of where they were
domiciled at the time of their marriage. Under the legal regime, property of married
persons can be either community or separate. Community property consists of property
acquired during the existence of the legal regime through the effort or skill of either
spouse. Community property is also property which was acquired with community
property or with a combination of community and separate property, unless the parties
agree to classify the new property as separate property. Community property is also
property which was donated or given to both spouses and any other property not
classified by law as separate property. There is a rebuttable presumption that everything
of value in the possession of a spouse during the existence of the regime of community
of acquets and gains is community property. The separate property of a spouse belongs
to that spouse exclusively. Separate property is 1) property acquired by a spouse prior
to the establishment of the community property regime; 2) the property acquired by a
spouse from separate property; or 3) property acquired by a spouse with separate and
community property, but the value of the community property is inconsequential in
comparison with the value of the separate property being used. Property acquired by a
spouse by inheritance or gift to the spouse individually, and not jointly to the other
spouse, is also separate property.
The legal regime of community property is terminated by a divorce. The parties
and the courts must then determine whether the assets are community or separate, or
combinations of both, and whether the liabilities of the parties are community or
separate, or combinations of both. Upon termination of a community property regime by
divorce, a spouse may have a claim against the other spouse for reimbursement of
separate property donated or transferred to community property. The court awards
separate property to each party and makes an equal division of community assets and
liabilities. In the event the allocation of specific assets and liabilities results in an
unequal net distribution, the court shall order the payment of an equalizing sum of
money, either cash or deferred, to equalize the shares of community property.
CC Art. 2325-2369; and RS 9:2801. MAINE
The court shall award to each spouse his non-marital property. The court shall
then divide marital property in such proportions as the court deems just after considering
all relevant factors including 1) the contribution of each spouse to the acquisition of the
marital property including the contribution of a spouse as homemaker; 2) the value of the
properties being awarded to each spouse; and 3) the economic circumstances of each
spouse at the time the division of property is to become effective, including the
desirability of awarding the family home or the right to live in the family home to the
spouse having custody of any children. Marital property means all property acquired by
either spouse subsequent to the marriage, except 1) property acquired by gift or
inheritance; 2) property acquired in exchange for property acquired prior to the marriage
or in exchange for property acquired by gift or inheritance; 3) property acquired by a
spouse after a decree of legal separation; 4) property excluded by valid agreement of the
parties; and 5) the increase of value of property acquired prior to the marriage. All
property acquired by the spouse subsequent to the marriage and prior to a decree is
presumed to be marital property regardless of how title is held.
19 MRSA �722-a. MARYLAND
Maryland law provides that �marital property� means the property acquired by one
or both parties during the marriage. Marital property does not include property acquired
by either before the marriage, acquired by inheritance or gift from a third party, excluded
by valid agreement, or directly traceable to any of these sources. In dividing property,
the court first determines which property is marital property and then values that
property. The court may then transfer ownership of assets, divide property, or grant a
monetary award to either or both of the parties, in order to arrive at an equitable
adjustment of the equities and rights of the parties concerning their marital property. The
court shall determine the amount and method of payment of a monetary award, the
terms of the division of properties, or both, after considering each of the following
factors: 1) the contributions of each party to the well-being of the family; 2) the value of
all property interests of each party; 3) the economic circumstances of each party at the
time the award is to be made; 4) fault of either party leading up to the divorce; 5) the
duration of the marriage; 6) age of each party; 7) physical and mental condition of each
party; 8) how and when the marital property was acquired; 9) the contribution of
non-marital
property by either party to the acquisition of real property; 10) any award of
alimony and any award with respect to use of personal property or the family home; 11)
any other factor the Court considers necessary or appropriate to consider in order to
arrive at a fair and equitable monetary award or transfer of an interest in the property, or
both.
ACM �8-201, and 8-205. MASSACHUSETTS
The court has broad discretion to make an equitable distribution of the property of
the parties. The property the court will divide expressly includes all vested and
non-vested
benefits, rights and funds accrued during the marriage including but not limited to
retirement benefits, profit sharing, deferred compensation, and insurance. In
determining the nature and value of the property to be distributed, the court shall
consider the length of the marriage; the conduct of the parties during the marriage; the
age, health, station, occupation, amount and sources of income, vocational skills,
employability, liabilities and needs of each of the parties; and the opportunity of each
party for future acquisition of capital assets and income. The court shall also consider
the present and future needs of the dependent marriage. The court may also consider
the contribution of each of the parties in the acquisition, preservation, or appreciation in
value of their respective estates and the contribution of each of the parties as a
homemaker to the family unit. ALM 208 �34. MICHIGAN
The court makes an equitable division of all property. The factors to be
considered by the court in dividing property are duration of the marriage, contributions of
the parties to the acquisition of property, age of the parties, health of the parties, their
status in life, necessities and circumstances of the parties, their earning abilities, conduct
and fault of the parties, general principals of equity, and any other factor relevant to the
particular case.
MCLA �552.23. MINNESOTA
The court shall make a just and equitable division of the marital property of the
parties without regard to marital misconduct (fault). Marital property means all property
acquired by the parties or either of the parties at any time during the existence of the
marriage relationship but prior to the date of valuation, which is the day of the initially
scheduled pre-hearing settlement conference. However, the court has discretion to make
a specific finding that another date of valuation is fair and equitable. The court's division
of property is to be based on all relevant factors including: the length of the marriage;
any prior marriage of a party; the age, health, station, occupation, amount, and sources
of income, vocational skills, employability, estate, liabilities, needs, opportunity for future
acquisition of assets, and income of each party. The courts will also consider the
contribution of each in the acquisition, preservation, or appreciation in the amount or
value of the marital property, as well as the contribution of a spouse as a homemaker. It
shall be conclusively presumed that each spouse made a substantial contribution to the
acquisition of income and property while they were living together as husband and wife.
Minn. Stat. �518.54, Subd. 5, and Minn. Stat. �518.58. MISSISSIPPI
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of
another, including, but not limited to, life insurance proceeds. Individual property
includes property exchanged for other individual property or purchased with the
proceeds from individual property. Property can be a combination of community and
individual. For example, a business owned by one spouse before the marriage would
remain that spouse�s individual property, but the other spouse could argue that a portion
of the value of the business should be considered a part of community property because
the value was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
Assets acquired or accumulated during the course of the marriage are marital
assets subject to an equitable distribution by the Chancellor. In determining an equitable
distribution of marital property, it is assumed that the contributions and efforts of the
marital partners, whether economic, domestic, or otherwise, are of equal value. One of
the primary considerations by the court is the economic contributions made to the
marriage by each party, whether those contributions are in terms of actual money earned
or property acquired, or in terms of services provided without compensation.
MC 93-5-23. MISSOURI
The court shall award to each spouse his non-marital property and shall divide the
marital property as the court deems just after considering all relevant factors including
the following: 1) the economic circumstances of each spouse at the time of the division
of property, including the desirability of awarding the family home or the right to live
therein for reasonable periods to the spouse having custody of any children; 2) the
contribution of each spouse to the acquisition of the marital property including the
contribution of a spouse as homemaker; 3) the value of the non-marital property set apart
to each spouse; 4) the conduct of the parties during the marriage (fault); and 5) custodial
arrangements for minor children.
Marital property means all property acquired by either spouse subsequent to the
marriage except: 1) property acquired by gift or inheritance; 2) property acquired in
exchange for property acquired prior to marriage or in exchange for property acquired by
gift or inheritance; 3) property acquired by a spouse after a decree of legal separation; 4)
property excluded by valid written agreement of the parties; and 5) the increase in value
of property acquired prior to marriage or by inheritance or by valid agreement, unless
marital assets including labor have contributed to such increases and then only to the
extent of such contributions. All property acquired subsequent to the marriage is
presumed to be marital property. The court�s order for distribution of marital property
shall be a final order not subject to modification. VAMS �452.330. MONTANA
The court, without regard to fault or marital misconduct, shall equitably apportion
between the parties the property and assets belonging to either or both, however and
whenever acquired, and whether the title to the assets is in the name of the husband or
wife or both. In making an equitable division of assets, the court shall consider the
duration of the marriage and prior marriage of either party; the age, health, occupation,
amount and sources of income, vocational skills, employability and needs of each of the
parties; custodial provisions; whether the division of assets is in place of, or in addition
to, an award of maintenance; and the opportunity for each party for future acquisition of
assets and income. The court shall also consider the contribution or dissipation of value
of the property and the contribution of a spouse as a homemaker.
The court may protect and promote the best interest of the children by setting
aside a portion of the jointly and separately held assets of the parties in a separate fund
or trust for the support and welfare of any minor children.
MCA 40-4-202. NEBRASKA
The court may order division of property as may be reasonable, after
consideration of the circumstances of the parties, duration of the marriage, a history of
the contributions to the marriage by each party, including contributions to the care and
education of the children and interruption of personal career or educational opportunities,
and the ability of the supported party to engage in gainful employment without interfering
with the interests if any minor children in that person�s custody. The primary purpose of
a property division is to distribute the marital assets equitably between the parties.
Reissues Revise Statutes 42-365. NEVADA
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of
another, including, but not limited to, life insurance proceeds. Individual property
includes property exchanged for other individual property or purchased with the
proceeds from individual property. Property can be a combination of community and
individual. For example, a business owned by one spouse before the marriage would
remain that spouses individual property, but the other spouse could argue that a portion
of the value of the business should be considered a part of community property because
the value was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
Under Nevada law, separate property is property owned by the party before
marriage, and acquired by the party after marriage by gift, inheritance, or by an award for
personal injury damages, together with rents, dividends, and other income from such
separate property. At any time during the marriage, a married person may issue a full
and complete inventory of that person�s separate property and record the inventory in the
office of the county recorder for the county in which the person resides. If any real
estate located in another county is included in the recorded inventory, then the inventory
shall also be recorded with the county recorder for such other county. A supplemental
inventory may be completed, signed, acknowledged, and recorded in similar fashion at
any time thereafter. All property acquired after marriage by either husband or wife, or
both, is community property, unless the property can be identified as the separate
property of either party. The parties may enter into an agreement between them to
identify which property is separate and which is community.
NRS 123.010-.310.
Upon granting a divorce, the court shall make an equal disposition of the
community property of the parties, except that the court may make an unequal
disposition of the community property in such proportions as it deems just, if the court
finds a compelling reason to do so and sets forth in writing the reasons for making the
unequal disposition. If a party has made a contribution of separate property to the
acquisition or improvement of property held in joint tenancy, the court may, in its
discretion, provide for the reimbursement of that party for his contribution. The amount
of reimbursement must not exceed the amount of the contribution of separate property
that can be traced to the acquisition or improvement. In determining whether to
reimburse a party who has contributed separate property, the court shall consider: 1) the
intention of the parties in placing the property in joint tenancy; 2) the length of the
marriage; and 3) any other factor which the court deems relevant in making a just and
equitable disposition of that property.
In granting a divorce, the court may also set apart a portion of one party�s
separate property for the support of the other party, or the separate property of either
spouse for the support of their children, as the court deems just and equitable under the
circumstances. NRS 125.150. NEW HAMPSHIRE
The court may order an equitable division of property between the parties. The
court shall presume that an equitable distribution requires an equal division, unless the
court establishes a trust fund for the support and education of either party or any child of
the parties, or unless the court decides that an equal division would not be appropriate or
equitable after considering all relevant factors. The court shall consider the following
factors in determining what is an equitable distribution of property: 1) duration of the
marriage; 2) the age, health, social or economic status, occupation, vocational skills,
employability, separate property, amount and sources of income, needs and liabilities of
each party; 3) the opportunity of each party for future acquisition of assets and income;
4) the ability of the custodial parent to engage in gainful employment without
substantially interfering with the interests of any minor children in the party�s custody; 5)
the custodial parent�s need to occupy the marital residence; 6) the actions of either party
during the marriage which contributed to the growth or dissipation of the property; 7)
significant disparity between the parties regarding contributions to the marriage, including
for the care and education of children and the care and management of the home; 8)
any direct or indirect contribution made by one party to help educate or develop the
career or employability of the other party and any interruption of either party�s
educational or personal career opportunities; 9) the expectation of pension or retirement
benefits acquired prior to or during the marriage; 10) tax consequences; 11) any property
being allocated by a valid prenuptial agreement; 12) the fault of either party if the fault
caused the breakdown of the marriage and caused substantial physical or mental pain
and suffering, or resulted in substantial economic loss to the marital property or the
injured party; 13) the value of any property acquired before the marriage and the value of
property acquired in exchange for pre-marital property; 14) the value of any property
acquired by gift or inheritance; and 15) any other relevant factor.
RSA 458:16-a. NEW JERSEY
The court shall make an equitable distribution of all property acquired by either or
both of the parties during the marriage. If either party acquired property by gift or
inheritance during the marriage, that property shall not be subjected to equitable
distribution, with the exception of gifts between the spouses, which are subject to
equitable distribution by the court. The court shall consider the following factors: 1)
duration of the marriage; 2) age, and physical and emotional health of the parties; 3)
income or property brought to the marriage by each party; 4) the standard of living
established during the marriage; 5) any written agreement made by the parties before or
during the marriage concerning an arrangement for property distribution; 6) economic
circumstances of each party at the time the division of property is to become effective; 7)
the income and earning capacity of each party, including educational background,
training, employment skills, work or experience, length of absence from the job market,
custodial responsibilities for children, and the time and expense necessary to acquire
sufficient education or training to enable a party to become self-supporting; 8) the
contribution by each party to the education, training, or earning power of the other; 9)
contribution of each party to the acquisition, dissipation, preservation, or appreciation in
the amount or value of marital property, including the contribution of a party as a
homemaker; 10) tax consequences of the proposed distribution; 11) present value of the
property; 12) need of a parent with physical custody of a child to own or occupy the
marital residence; 13) debts and liabilities; 14) the need for creation, now or in the future,
of a trust fund to secure reasonably foreseeable medical or educational costs for a
spouse or children; and 15) any other factors in which the court may deem relevant. It
shall be a rebuttable presumption that each party made a substantial financial or
non-financial
contribution to the acquisition of income and property while the parties were
married. NJSA 2A34-23 and 34-23.1. NEW MEXICO
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of
another, including, but not limited to, life insurance proceeds. Individual property
includes property exchanged for other individual property or purchased with the
proceeds from individual property. Property can be a combination of community and
individual. For example, a business owned by one spouse before the marriage would
remain that spouses individual property, but the other spouse could argue that a portion
of the value of the business should be considered a part of community property because
the value was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
According to New Mexico law, a husband and wife may own property as joint
tenants, tenants in common, or as community property. Community property means
property acquired by either or both spouses during marriage, which is not the separate
property of either spouse. Property acquired by a husband and wife, as joint tenants or
as tenants in common, shall be presumed to be held as community property, unless such
property is proven to be separate property. Separate property means any of the
following categories of property: 1) property acquired by either spouse before marriage
or after entry of a decree of dissolution of marriage; 2) property acquired after entry of a
decree of a legal separation; 3) property designated as separate property by a Judgment
or Decree of any court having jurisdiction over the property; 4) property acquired by
either spouse by gift or inheritance; and 5) property designated as separate property by
a written agreement between the parties. Debts and liabilities can also be separate or
community. The separate debt of a spouse shall be satisfied first from that spouse�s
separate property. Neither spouse�s interest in community property shall be liable for the
separate debt of the other spouse. Community debts shall be satisfied first from all
community property and all property in which each spouse owns an undivided, equal
interest as a joint tenant or tenant in common. If community property is insufficient to
pay the debt, only the separate property of the spouse who incurred the debt shall be
liable for satisfaction of the balance of the debt.
Property acquired during marriage by either husband or wife, or both, is
presumed to be community property. �40-3-1 to 40-3-17 NMSA.
The court has the discretion to make an award of alimony to either spouse out of
the other spouse�s separate property. The Decree making such an award of alimony,
has the force and effect of vesting title of the property on the recipient.
�40-4-12 NMSA.
The court also has the discretion to make an award out of the separate property
of the parties, or out of all the property, such amount for the maintenance and education
of the minor children as, to the court, seems just and proper under all the circumstances.
�40-4-7B(3) NMSA.
Generally, the court shall divide community property equally between the parties.
However, the court has the discretion to allocate assets and liabilities in a way that is fair
under all the circumstances. Community property shall be equitably apportioned
between the parties by a method of division which is fair under the circumstances.
�40-4-7 NMSA. NEW YORK
Except where the parties have provided for distribution of their property in a valid
written agreement, the court shall determine the rights of the parties in their separate or
marital property and shall provide for the disposition of all property of the parties in the
final divorce judgment. Separate property shall be awarded to the owner of such
separate property. Marital property shall be distributed equitably between the parties,
considering the circumstances of the case and of the parties. �Marital property� shall
mean all property acquired by either or both spouses during the marriage, and before the
execution of a separation agreement or the commencement of a divorce action. Marital
property shall not include �separate property� which means 1) property acquired before
marriage or property acquired by gift or inheritance; 2) compensation for personal
injuries; 3) property acquired in exchange for, or the increase in value of, separate
property, except to the extent that such appreciation is due in part to the contributions or
efforts of the other spouse; or 4) property described as separate property in the written
agreement of the parties.
In determining an equitable division of marital property, the court shall consider
the following factors: 1) the income and property of each party at the time of marriage,
and at the time of the commencement of the action; 2) the duration of the marriage and
the age and health of both parties; 3) the need of a custodial parent to occupy the
marital residence; 4) the loss of inheritance and pension rights upon dissolution of the
marriage, as of the date of dissolution; 5) any award of spousal maintenance; 6) any
equitable claim to, interest in, or direct or indirect contribution made to the acquisition of
marital property by either party, including contributions and services by a party as a
spouse, parent, wage earner and homemaker, or contributions to the career potential of
the other party; 7) the liquid or non-liquid character of all marital property; 8) the probable
circumstances of each party; 9) the impossibility or difficulty of evaluating any asset or
any interest in a business, corporation, or profession, and the economic desirability of
retaining such asset or interest, intact and free from any claim by the other party; 10) tax
consequences; 11) any wasteful dissipation of assets by any spouse; 12) any transfer or
encumbrance made in contemplation of a divorce without fair consideration; and 13) any
other factor which the court finds to be just and proper. Marital misconduct or fault, is not
a factor used by the court in determining how to divide property.
The court may make a distributive award in order to achieve equity between the
parties. This is a payment, payable in a lump sum or over a period of time, in fixed
amounts, which the court determines is just and equitable in order to supplement or
complete the equitable distribution of property.
Domestic Relations Law �236. NORTH CAROLINA
The court shall make an equitable distribution of the marital property between the
parties. Marital property means all property acquired by either spouse or both spouses
during the course of the marriage and before the date of the separation of the parties.
Marital property includes vested pension, retirement, and other deferred compensation
rights, including military pensions. It is presumed that all property acquired after the date
of marriage and before the date of separation is marital property, except property which
is considered separate property. This presumption may be rebutted by the greater
weight of the evidence. Separate property means all property acquired by spouse
before marriage or acquired by spouse by gift or inheritance during the marriage.
Property acquired in exchange for separate property shall remain separate property.
The increase in value of separate property and the income derived from separate
property shall be considered separate property. All provisional licenses and business
licenses which would terminate on transfer shall be considered separate property.
The court shall make an equal division of marital property unless the court
determines it would not be equitable. Factors the court shall consider in determining an
equitable division of property include the following: 1) the income, property, and
liabilities of each party at the time the division of property is to become effective; 2) any
obligation for support arising out of a prior marriage; 3) the duration of the marriage and
the age and physical and mental health of the parties; 4) the need of a custodial parent
to occupy the marital residence; 5) the expectation of pension, retirement, or other
deferred compensation rights which are separate property; 6) direct or indirect
contributions made to the acquisition of marital property by the parties, including joint
efforts or expenditures and contributions and services as a spouse, parent, wage earner
or homemaker; 7) any direct or indirect contribution made by one spouse to help educate
or develop the career potential of the other spouse; 8) any direct contribution to an
increase in value of separate property which occurs during the marriage; 9) the liquid or
non-liquid character of all marital property; 10) the difficulty of evaluating any asset or
any interest in the business, and the economic desirability of retaining such asset or
interest, intact and free from any claim or interference by the other party; 11) tax
consequences; 12) actions by the parties after separation and before the time of
distribution of property, to maintain or preserve or to waste or neglect the property; and
13) any other factor which the court finds to be just and proper. The parties are required
to serve and file equitable distribution inventory affidavits listing all property claimed by
each party to be marital or separate property, and the estimated fair market value of
each item of property on the date of separation. For purposes of equitable distribution,
marital property shall be valued as of the date of the separation of the parties.
GS �50-20 and �50-21. NORTH DAKOTA
When a divorce is granted, the court shall make such equitable distribution of the
real and personal property of the parties as may seem just and proper. When either the
husband or the wife has a separate estate sufficient to give proper support, the court in
its discretion may withhold any allowance to that person out of the separate property of
the other spouse. In a divorce decree, the court may assign the homestead, as may
seem just, to the innocent party, either absolutely or for a limited period, based upon the
facts of the case. Failure to comply with the provisions of a divorce decree relating to
distribution of the property of the parties constitutes contempt of court.
NDCC �14-05-24, 14-05-25, 14-05-25.1. OHIO
The court shall determine what constitutes marital property and what constitutes
separate property of the parties. The court shall then divide the marital and separate
property equitably between the parties. The court has jurisdiction over all property in
which one or both spouses have an interest. The division of marital property shall be
equal. However, if an equal division of marital property would be inequitable, the court
may make an equitable division. If a spouse has engaged in financial misconduct,
including but not limited to the dissipation, destruction, concealment, or fraudulent
disposition of assets, the court may compensate the offended spouse with a greater
award of property. Each spouse shall be considered to have contributed equally to the
production and acquisition of property. The court may make a �distributive award� in
place of a division of marital property in order to achieve equity between the spouses.
This means any payment or payments, payable in a lump sum or over time, that are
made from one party�s separate property or income and not from marital property.
In making a division of marital property, and in determining whether to make a
distributive award, the court shall consider all of the following factors: 1) duration of the
marriage; 2) assets and liabilities of the spouses; 3) desirability of awarding the family
home or right to reside in the family home to the spouse with custody of the children; 4)
the liquidity of the property to be distributed; 5) the economic desirability of retaining an
asset intact; 6) tax consequences of the property division; 7) the costs of sale if it is
necessary for an equitable distribution of property; 8) any division or disbursement of
property made in a Separation Agreement between the parties; and 9) any other facts
that the court expressly finds to be relevant and equitable. A division of property or a
distributive award is not subject to future modification by the court.
ORC 3105.17.1. OKLAHOMA
The court shall award to each spouse the property owned by him or her before
marriage. The court may award alimony to either spouse out of the property, including
premarital property, of the other spouse, in such amounts as the court shall think
reasonable, having due regard to the value of the property. The court shall make a just
and reasonable division of the property which has been acquired by the parties during
the marriage. The court may make a division of the property in kind, or by awarding
property to either of the parties and awarding to a party a lump sum property settlement,
in such amount as may be just and proper to arrive at a fair and just division of the
property.
43 Okl.St.Ann. �121. OREGON
The court may order a division, or other disposition between the parties, of the
real or personal property of either or both of the parties, as may be just and proper under
all the circumstances. The court shall consider the contribution of a spouse, as a
homemaker, as a contribution to the acquisition of marital assets. There is a rebuttable
presumption that both spouses have contributed equally to the acquisition of property
during the marriage, whether such property is jointly or separately held. The court shall
require full disclosure of all assets by the parties and arrive at a just property division.
The court shall consider reasonable costs of sale of assets, taxes, and any other costs
reasonably anticipated by the parties to divide the property. If a spouse has been
awarded spousal maintenance in place of a share of property, the court shall state so on
the record and shall order the maintenance obligor to provide for and maintain life
insurance with the obligee as beneficiary for the duration of the maintenance obligation.
If the earning capacity of one spouse has been enhanced during the marriage,
the other spouse may assert an interest in the income resulting from the enhancement if
that spouse can demonstrate a material contribution to the enhancement. Material
contribution can be shown by having contributed, financially or otherwise, to the
education and training that resulted in the enhanced earning capacity. The contribution
shall have been substantial and of a prolonged duration. ORS 107.105(1)(f). PENNSYLVANIA
The court shall equitably divide, distribute, or assign, in kind or otherwise, the
marital property, between the parties, without regard to marital misconduct, in such
proportions and in such manner as the court deems just after considering all relevant
factors including the following: 1) length of the marriage; 2) any prior marriage of either
of the parties; 3) the age, health, station, amount and sources of income, vocational
skills, employability, liabilities and needs of each of the parties; 4) the contribution by one
party to the education, training or increased earning power of the other party; 5) the
opportunity of each party for future acquisitions of capital assets and income; 6) the
sources of income of both parties, including medical, retirement, insurance, or other
benefits; 7) the contribution or dissipation of each party in the acquisition, preservation,
or appreciation of the marital property, including the contribution of the party as
homemaker; 8) the value of the property set apart to each party; 9) the standard of living
of the parties established during the marriage; 10) the economic circumstances of each
party, including tax ramifications, at the time the division of property is to become
effective; and 11) whether either party will be serving as the custodian for minor children.
The court may award the right to reside in the marital residence. Marital property is all
property acquired by either party during the marriage, including the increase in value,
prior to the date of final separation, of any non-marital property. All property acquired by
either party during the marriage is presumed to be marital property, regardless of
whether title is held individually or by the parties in some form of co-ownership. The
presumption of marital property is overcome by showing that the property was acquired
by a party prior to the marriage, by inheritance or gift to one spouse during the marriage,
or property acquired in exchange for such property. Marital property also does not
include any property excluded by valid agreement of the parties entered into before,
during, or after the marriage.
Within 90 days after service of the complaint for divorce, or any other court
document requesting that the court determine and divided the property, each party shall
file an inventory specifically describing all property owned or possessed at the time the
action was commenced. The inventory shall describe 1) all marital property in which
either or both parties have an interest as of the date of the filing of the complaint; and 2)
all properties which a spouse claims to be excluded from marital properties, and the
basis for such exclusion.
Each party shall serve and file a pretrial statement at least 60 days before any
scheduled hearing regarding distribution of property, or within the time otherwise
required by court order or written directive of the master. The pretrial statement shall
include a list of all assets including marital and non-marital, a list of marital debts, names
and addresses of expert whiteness, name and address and summary of testimony
expected from each person a party intends to call as a witness at trial, a list of the
exhibits a party expects to offer to evidence at trial, a description of gross and net
income, a summary of expenses, the value of pension and retirement benefits, a
proposed resolution of all economic issues and any other information and issues
required to be addressed by the court, or by court rule applicable in the particular county
in which the action is pending.
23 Pa.C.S.A. � 3501 - 3508; rule 1920.33, Pennsylvania Rules of Civil Procedure. RHODE ISLAND
The court shall make an equitable division of the marital
property of the parties after considering the following factors: 1)
length of the marriage; 2) conduct of the parties during the marriage;
3) contribution of each party during the marriage in the acquisition,
preservation, or appreciation in value of the assets; 4) the
contribution and services of either party as a homemaker; 5) health and
age of the parties; 6) amount and sources of income of each of the
parties; 7) occupation and employability of each of the parties; 8)
opportunity of each party for future acquisition of capital assets and
income; 9) contribution by one party to the education, training,
business, or increased earning of the other party; 10) any need of the
custodial parent to occupy or own the marital residence if necessary for
the best interest of the children; 11) any dissipation of assets by
either party, or any transfer of assets made in contemplation of
divorce, without fair consideration; and 12) any factor which the court
shall expressly find to be just and proper. Non-marital property shall
be awarded to the spouse owing that property, including: 1) the property
which was owned by one of the parties prior to the marriage; 2) property
which was transferred to one of the parties by inheritance or gift
before, during, or after the term of the marriage. Income from
non-marital property may be considered marital property. An appreciation
of value of non-marital property may be considered marital property if
the increase in value was a result of the efforts of either spouse
during the marriage.
GLRI 15-5-16.1. SOUTH CAROLINA
In a divorce proceeding, the court shall make a final, equitable apportionment
between the parties of the marital property of the parties. In making apportionment, the
court must give weight in such proportion as it finds appropriate to all of the following
factors: 1) duration of the marriage and ages of the parties; 2) marital misconduct or
fault of either or both parties, whether or not used as basis for the divorce, if the
misconduct has effected the economic circumstances of the parties, or contributed to the
break up of the marriage; 3) the value of the marital property - the court shall consider
the quality of the contribution of each spouse to the acquisition, preservation,
depreciation, or appreciation in the value of the marital property, including the
contribution of a spouse as homemaker; 4) the income and earning potential of each
spouse, and the opportunity for future acquisition of capital assets; 5) the physical and
emotional health of each spouse; 6) the need of each spouse for additional training or
education in order to achieve income potential; 7) the non-marital property of each
spouse; 8) any vested retirement benefits; 9) whether alimony has been awarded; 10)
the desirability of awarding the family home as a part of equitable distribution, or the right
to live in the family home for reasonable periods, to the spouse having custody of any
children; 11) tax consequences to either party as a result of the court�s equitable
apportionment of property; 12) the existence and extent of any other support obligations;
13) liens and obligations which must be equitably divided; 14) child custody
arrangements and obligations for care of children; and 15) such other relevant factors as
the trial court shall expressly state in its order. The court�s order for distribution of marital
property shall be a final order not subject to modification, except by appeal or remand
following proper appeal.
The court does not have jurisdiction or authority to divide non-marital property.
Marital property means all property which has been acquired by the parties during the
marriage and which is owned as of the date of filing or commencement of the divorce.
Marital property does not include the following, which constitute non-marital property: 1)
property acquired by either party by inheritance, bequeaths, or gift from a party other
than the spouse; 2) property acquired by either party before the marriage, and property
acquired after entry of a temporary order in the divorce action or signing of a Marital
Settlement Agreement; 3) property acquired by either party in exchange for property
which would otherwise be non-marital property; 4) property excluded by valid antenuptial
agreement of the parties; or 5) any increase in value and non-marital property, except to
the extent that the increase resulted directly or indirectly from efforts of the other spouse
during the marriage. 1976 Code �20-7-472 and �20-7-473. SOUTH DAKOTA
When a divorce is granted, the courts make an equitable division of the property
belonging to either or both parties, whether the title to the property is in the name of the
husband or the wife. In making the division of property, the court considers what is fair
under all the circumstances. In making an equitable division of property, the court
considers all relevant factors, including the duration of the marriage, the value of the
property of each of the parties, the age and health of the parties, their respective abilities
to earn a living, the contributions of each party to the accumulation of the property, and
the income-producing capacity of the assets of the parties. S.D.C.L. 25-4-44. TENNESSEE
The Tennessee courts shall make an equitable distribution of the marital property
between the parties, without regard to marital fault, in such amounts and in such manner
as the court deems just. The court shall order the equitable distribution of property prior
to any determination to award alimony to either party. Marital property means all
property acquired by either or both spouses during the course of the marriage up to the
date of the final divorce hearing, and owned by either or both spouses as of the date of
filing of the Petition for Divorce. Marital property includes income from, and any increase
in value during the marriage, of property determined to be separate property, if each
party substantially contributed to its preservation and appreciation. Marital property
includes the value of vested pension, retirement, or other fringe benefit rights accrued
during the marriage. �Substantial contribution� may include the direct or indirect
contribution of a spouse as homemaker, wage earner, parent or family financial
manager, together with such other factors as the court may determine. Separate
property means all property owned by a spouse before marriage, property acquired in
exchange for property owned before the marriage, income from an appreciation in value
of property during the marriage, except when characterized as marital property, and
property acquired by a spouse at any time by gift or inheritance.
In making an equitable division of marital property, the court shall consider all
relevant factors including: 1) duration of the marriage; 2) the age, physical and mental
health, vocation skills, employability, earning capacity, financial liabilities, and financial
needs of each of the parties; 3) the tangible or intangible contribution by one party to the
education, training, or increased earnings of the other party; 4) the relative ability of each
party for future acquisition of assets and income; 5) the contribution of each party to the
acquisition, appreciation, or dissipation of the marital or separate property, including the
contribution of a party as homemaker, wage earner, or parent; 6) the value of the
separate property of each party; 7) the estate of each party at the time of the marriage;
8) the economic circumstances of each party at the time the division of property is to
become effective; 9) tax consequences; and 10) such other factors as are necessary to
consider the equities between the parties.
The court may award the family home and personal property in the home to either
party, for a reasonable period, but shall give special consideration to a spouse having
physical custody of children. The court may impose a lien upon marital property, or upon
each parties� separate property or both, as security for the payment of child support,
alimony, or property division. TCA �36-4-121. TEXAS
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of
another, including, but not limited to, life insurance proceeds. Individual property
includes property exchanged for other individual property or purchased with the
proceeds from individual property. Property can be a combination of community and
individual. For example, a business owned by one spouse before the marriage would
remain that spouse�s individual property, but the other spouse could argue that a portion
of the value of the business should be considered a part of community property, because
the value was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party, and community property is divided equally.
Texas law defines separate property as: 1) the property owned or claimed by a
spouse before marriage; 2) property acquired by the spouse during marriage, by gift or
inheritance; and 3) recovery from personal injuries sustained by the spouse during
marriage, except any recovery for loss of earning capacity during the marriage.
Community property is defined as all property acquired by either spouse during marriage,
except that property which is excluded as separate property. Texas law presumes that
all property owned by the parties is community property. A party can offer proof that
property should be considered that spouse�s separate property, if the party supports the
exclusion by clear and convincing evidence.
The court has the power to order an equitable division of the community property
of the parties. The court should order a division of the community property in a manner
that the court deems just and right, having due regard for the rights of each party and
any children of the marriage. The court is given broad discretion to divide property in a
divorce case, but those statutes limit the court�s exercise or discretion to the division of
community property. The court does not have the authority to divide the separate
property of the parties.
V.T.C.A., Family Code �5.01-5.27; and �3.63. UTAH
The court shall make an equitable division of property of the parties. The court
shall include in the decree an order specifying which party is responsible for the payment
of joint debts, obligations, or liabilities of the parties, contracted or incurred during the
marriage. The court shall also order the parties to notify respective creditors regarding
the court�s division of debts and inform the creditors of the parties� separate and current
addresses.
When a marriage of long duration dissolves on the threshold of a major change
of the income of one of the spouses, due to the collective efforts of both, that change
shall be considered in dividing the marital property. If one spouse�s earning capacity has
been greatly enhanced through the efforts of both spouses during the marriage, the
court may make a compensating adjustment in dividing the marital property.
UCA 30-3-5. VERMONT
The court shall make an equitable division of the property of the parties. All
property owned by either or both of the parties, however and whenever acquired, shall
be subject to the jurisdiction of the court. Title to the property shall be immaterial, except
where equitable distribution can be made without disturbing separate property. In
making a property settlement, the court may consider all relevant factors including, but
not limited to: 1) length of the marriage; 2) age and health of the parties; 3) the
occupation, source and amount of income of each of the parties; 4) vocational skills and
employability; 5) the contribution by one spouse to the education, training, or increased
earning power of the other; 6) the value of all property interests, liabilities and needs of
each party; 7) whether the property settlement is in place of, or in addition to, spousal
maintenance; 8) the opportunity of each party for future acquisition of assets and
income; 9) the desirability of awarding the family home to the spouse with custody of the
children; 10) the party through whom the property was acquired; 11) the contribution of
each spouse in the acquisition, preservation, and appreciation in value of the property,
including the non-monetary contribution of a spouse as a homemaker; and 12) fault of
the parties. 15 VSA Section 751. VIRGINIA
Upon decreeing a divorce, the court shall determine the ownership and value of
all property of the parties and shall consider which of such property is separate property,
which is marital property, and which is part separate and part marital property. The court
shall determine the value of any such property as of the date of the hearing on the issue
of valuation. However, upon request of either party, the court may for good cause
shown, in order to attain the ends of justice, order that a different valuation date be used.
Separate property is all property acquired by either party before the marriage; all
property acquired during the marriage by gift or inheritance; all property acquired during
the marriage in exchange for or from separate property and which is maintained as
separate property; and any property classified as separate property by the court because
the property, although commingled, maintained its separate character. Income received
from separate property during the marriage continues to be separate property if it is not
attributable to the personal effort of either party. The increase in value of separate
property remains separate property, unless marital property or the personal efforts of
either party have contributed to such increases, and then only to the extent of the
increases in value attributable to such contributions. The personal efforts must be
significant and result in substantial appreciation of the separate property before any
increase in value can be considered marital property.
Marital property is all property acquired by each party during the marriage which
is not separate property. When marital property and separate property are commingled,
the commingled property shall be deemed marital property. However, to the extent
contributed separate property can be traceable by a preponderance of the evidence, the
contributed property shall retain its original classification.
Except under limited circumstances, the court shall have no authority to order the
division or transfer of separate property. The court may divide or transfer marital
property. The court shall also have the authority to apportion and order payment of
debts of the parties. The court also has the power to grant a monetary award, payable
either in a lump sum or over a period of time in fixed amounts. The amount of any
monetary award, the amount of any division or transfer of marital property, and the
apportionment of marital debts shall be determined by the court after considering the
following factors: 1) the contributions, monetary and non-monetary, of each party to the
well-being of the family; 2) the contributions, monetary and non-monetary, of each party
in the acquisition and care and maintenance of marital property; 3) duration of the
marriage; 4) ages and physical and mental condition of the parties; 5) circumstances and
factors which contributed to the dissolution of the marriage, specifically including adultery
or other fault; 6) how and when property was acquired; 7) debts and liabilities of each
spouse; 8) the liquid or non-liquid character of property; 9) tax consequences; and 10)
such other factors as the court deems necessary or appropriate to consider, in order to
arrive at a fair and equitable award.
The court shall determine the amount of any monetary award without regard to
maintenance and child support awarded for either party or on behalf of the children.
The court may direct payment of a percentage of a marital share of any pension,
profit sharing, or retirement benefits, whether vested or non-vested, which constitute
marital property. CV �20-107.3. WASHINGTON
In this state, the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of another
including, but not limited to, life insurance proceeds. Individual property includes
property exchanged for other individual property or purchased with the proceeds from
individual property. Property can be a combination of community and individual. For
example, a business owned by one spouse before the marriage would remain that
spouses individual property, but the other spouse could argue that a portion of the value
of the business should be considered a part of community property because the value
was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
Although Washington is a community property state, Washington dissolution
statues require the court to divide property, whether separate or community, on the basis
of what is just and equitable after considering all relevant factors, including, but not
limited to: 1) the nature and extent of the community property; 2) the nature and extent
of the separate property; 3) the duration of the marriage; and 4) the economic
circumstances of each spouse at the time the division of property is to become effective,
including the desirability of awarding the family home, or the right to live in the family
home for reasonable periods, to a spouse with whom the children reside the majority of
the time. RCW �26.09.080.
Each party may own �separate property.� Property owned by a party before
marriage or acquired after marriage by gift or inheritance shall not be subject to the debts
or contracts of his spouse, and the owner may manage, sell, or convey such property
without the spouse joining in, as fully and to the same effect as though he were
unmarried. RCW �26.16.010 and �26.16.020.
Property not acquired or owned as separate property, and any property acquired
after marriage by either husband or wife or both, is community property.
RCW �26.16.030.
Washington law also creates another category of property called �quasicommunity
property.� The distinctions of separate, community, or quasi-community
property are important in other areas of the law, such as how property is conveyed at the
time of death, but such distinctions are less important in a dissolution action because the
court has the power to divide all property, whether community or separate, in a just and
equitable manner.
RCW �26.09.080. WEST VIRGINIA
The court shall divide the marital property of the parties equally between the
parties, unless after a consideration of all relevant factors the court determines it is
appropriate to make an unequal but more equitable division of the marital property.
Marital property means all property and earnings acquired by either spouse during a
marriage. Marital property shall not include separate property which means 1) property
acquired by person before marriage; or 2) property acquired during marriage in
exchange for separate property which was acquired before the marriage; or 3) property
excluded from treatment as marital property by a valid agreement of the parties; or 4)
property acquired by a party during marriage by gift or inheritance; or 5) property
acquired by a party during a marriage but after the separation of the parities and before
the granting of a divorce; or 6) any increase in the value of separate property, due to
inflation or to a change in market value resulting from conditions outside the control of
the parties.
If the parties have entered into a written Property Settlement Agreement, the
court shall divide the marital property in accordance with the terms of the Agreement,
unless the court finds 1) the Agreement was obtained by fraud, duress, or other
unconscionable conduct by one of the parties; or 2) the Agreement of the parties is not
expressed in terms which would be enforceable by the court; or 3) the Agreement is
clearly inequitable.
In the absence of a valid Agreement, the court shall presume that all marital
property is to be divided equally between the parties, but may alter that distribution,
without regard to any fault by any party, after consideration of the following factors: 1)
the extent to which each party has contributed to the acquisition, preservation, and
maintenance, or increase in value, of marital property by monetary contributions; 2) the
extent to which each party has contributed to the acquisition and increase in value of
property by non-monetary contributions including homemaker and child care services,
labor performed without compensation, labor performed in maintenance of property or
investment of assets; 3) the extent to which each party expended his or her efforts
during the marriage in a manner which decreased such parties income-earning ability or
increased the income-earning ability of the other party, including contributions to the
education or training of the other party, or foregoing of employment or other
income earning
activity; 4) conduct by either party during the marriage which dissipated the
marital property of the parties, although fault or marital misconduct shall not be
considered by the court in determining the distribution of marital property.
WV Code �48-2-32. WISCONSIN
In this state the court divides the property of the parties according to the concept
of �community property.� The majority of states follow the concept of �equitable
distribution� of property, which means assets and earnings accumulated during marriage
are divided fairly at divorce. The concept of community property is followed in the
following states: Arizona, California, Idaho, Louisiana, Mississippi, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Generally, all property acquired during the marriage
is considered community property. In contrast, individual or separate property consists of
any property acquired by either party prior to the marriage, gifts and inheritances
specifically made to one spouse but not the other during the marriage, personal injury
awards received by one spouse during the marriage, proceeds of a pension which had
already vested before marriage, and property received by reason of the death of
another, including, but not limited to, life insurance proceeds. Individual property
includes property exchanged for other individual property or purchased with the
proceeds from individual property. Property can be a combination of community and
individual. For example, a business owned by one spouse before the marriage would
remain that spouses individual property, but the other spouse could argue that a portion
of the value of the business should be considered a part of community property because
the value was increased during the marriage. Generally, property divided by the court in
community property states is handled as follows: individual property remains the
property of that party and community property is divided equally.
The Wisconsin community property statute became the law on January 1, 1986.
Any property shown to have been acquired by either party prior to the marriage shall
remain the property of that party. This includes property received as a gift or inheritance
by one party but not the other, and property received by reason of the death of another,
including, but not limited to, life insurance proceeds. The court presumes that all
property not considered individual property is to be divided equally between the parties.
However, the court has discretion to divide the property equitably in order to prevent a
hardship to either party or the children. The exercise of such discretion is based upon all
relevant factors including the length of the marriage, the respective earning capacity of
the parties, the contribution of each party to the marriage, the age and health of the
parties, all economic circumstances, and all other relevant factors.
Wis. Stat. Chapter 766 and 767.255. WYOMING
In granting a divorce, the court shall make such disposition of the property of the
parties as appears just and equitable, having regard for the respective merits of the
parties and the condition in which they will be left by the divorce. The court also
considers the contributions of the parties in the acquisition of the property and the child
support and alimony also being awarded. The law requires a just and equitable division,
not an equal division. W.S. 20-2-114. |
