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Community Property States

Divorce Property Division: Community Property States vs. Equitable Distribution States

It’s no surprise that things get split in a divorce, but how? What does the law say? Most states in the U.S. use the “equitable distribution” system to determine each spouse’s property share in a divorce. However, nine U.S. states use the “community property asset-allocation” principle. These are community property states.

In order to understand your circumstances, it’s important to understand the difference between community property distribution and equitable distribution. In this article we will discuss the differences and as well, how community property states can protect women in particular, and why courts may view some marriage agreements as invalid.

What is the Community Property Distribution?

Community property is a method of dividing marital property at the time of divorce used by the following nine U.S. states: Arizona, Nevada, California, Louisiana, Idaho, New Mexico, Washington, Texas, and Wisconsin.

The laws in these community property states mainly originated from Spanish jurisdiction. The exception is Louisiana, where France enacted their property laws. The main difference between these two influences is that in Louisiana, spouses who have assets and debts characterized as community property can withdraw or modify the community property profile only after jointly filing a petition approved by the court to assist their best interests.

In the Community Property States, property acquired during the marriage is classified as jointly owned by both spouses. However, in these states, the court also recognizes separate property.

Separate property cannot be split 50-50 in divorce. It includes assets that partners acquired before the official marriage registration and after its end (after a divorce). It also covers gifts and inheritance received by one of the spouses at any time.

What is Equitable Distribution in Divorce?

Equitable distribution is the second method for dividing marital assets. The list of equitable distribution states includes 41 states. Exceptions are Alaska, South Dakota, and Tennessee, where spouses can choose community property options. As a result, residents and non-residents can transfer assets into a valid community property trust.

As practice shows, the number of such hybrid states is increasing over the years. For example, on July 15, 2020, Kentucky also adopted an optional community property system. Following the Bluegrass State, Florida, on July 1, 2021, set a Community Property Trust Act that allows partners to “opt-in” to community property treatment for assets kept in a trust that meets civil law requirements.

In non-community property states, the assets and debts are divided equally during a divorce. However, “equally” does not mean a 50-50 split. It means “fairly.”

When separating assets, the judge may grant each spouse a percentage of the total value of the property and debts, depending on each partner’s contribution to the marriage and other factors considered.

The judge could also order one side to use separate property to make decisions fair for both parties. The court applies this rule quite often when one of the spouses illegally hides assets from separation. For example, in California, for hiding assets, the court can punish the spouse with 100% payment of the value of this asset to the other partner.

Equitable Distribution vs. Community Property

As discussed, in states with community property, the law declares that spouses have equal control of all money and property earned during the marriage. Therefore, it can be beneficial for women or the unemployed.

For example, if a woman cares for a child or is a homemaker, her financial contribution to the marriage will likely be minimal. So, even if only one spouse receives income from employment, and the other is unemployed, the court will divide the property 50-50.

In addition, since all community property acquired by spouses is considered joint, regardless of whose name it is registered, debts are also considered shared. Obligations include car loans, mortgages, credit cards, and other marital debts.

However, the system of dividing property has “disadvantages” that can lead to higher alimony (spousal support) payments. For example, a court may decide that a spouse paying half of a family’s debt may need a higher amount of spousal support to maintain the standard of living during the marriage.

States with an equitable distribution of property have a more complex system, as the court takes many factors into account. For example, the property that partners acquire in marriage transfers to the spouse who made the purchase.

In addition, the judge can consider the financial contribution of each party to the marriage. This factor, on the contrary, may reduce the family property received by unemployed spouses or homemakers.

Related articles: Do Stay-At-Home Moms Get Alimony?

Breadwinning Women Face an Uphill Battle When Married and When Divorcing

What Affects Property Division During Divorce

There are general factors that affect asset division during divorce. The court considers primarily the following:

  • The marriage duration
  • The marital standard of living
  • Age of both spouses
  • Right to alimony/spousal support
  • Earning potential of each spouse (education, job prospects, etc.)
  • Both spouses’ contribution to the marriage (childcare, work, etc.)
  • Health status

Depending on the case specifics (the presence of children, where the child lives, etc.), the judge may consider additional factors when making decisions in states that follow the equitable distribution principle.

Correcting the Past

Many women live in strict patriarchal or “traditional” families, where the husband/father controls the family finances. Property may even be transferred through the male descent line. This causes some women to worry that they will face the same issue during a divorce: that they may not receive any assets if they divorce.

It’s important to know that regardless of your family culture, men and women living in the USA have equal rights today.

According to The Married Women’s Property Act, which was passed in New York in 1848, women have the full right to receive and freely dispose of the spouse’s property acquired during the marriage. The document also includes the status of a woman’s separate property, which remains hers even during marriage.

Following New York, in 1849, the California Constitutional Convention adopted the Married Woman’s Property Act into the state constitution. And over the following decades, other US states passed this act one by one.

Nowadays, women have the same property rights in divorce as men. They can inherit or receive assets with full discretionary authority.

Are Gifts from Spouse Separate Property?

This may sound surprising but in states with community property and equitable distribution laws, the court considers one spouse’s gifts to the other spouse as family property in a divorce. In contrast, if a third party gives a gift to one of the spouses, it is a separate asset.

So if your husband gives you a pearl necklace for your birthday, that necklace is considered family property and not automatically yours if you divorce.

Do Prenuptial Agreements Affect the Property Division?

Marriage contracts as with prenuptial agreements are an excellent tool for eliminating future, controversial issues during a divorce because they can bypass some 50-50 assets division matters. To create a prenup, spouses enter into the agreement mutually before the wedding.

And the court usually accepts the prenuptial agreement. However, before creating a prenup, partners should take into account the specifics of their state. For example, California has specific requirements that spouses should follow to ensure that the court does not decline their prenup.

Further, in California, there are specific issues the spouses cannot “pre-agree” on in the prenup. These include the issue of custody, support payments, and parental visitations. This is because the court tries to make decisions in the best interest of the child.

Spouses can negotiate the following terms in a prenuptial agreement:

  • debts division
  • how their property will be divided upon separation
  • the duration and size of spousal support.

What Happens to Community Property and Equitable Distribution When One Spouse Dies?

If a spouse dies before getting the final divorce in a community state, the other spouse has absolute rights to half of the community property. And, if one of the spouses dies without a will, their half of the family property automatically goes to the surviving spouse. However, if the deceased partner had a will, they could only distribute their 50% of the community property. If more than 50% of the community property is indicated in the will, the court can cancel the will until justice for the surviving spouse is restored.

In the equitable distribution states, similar rules apply in the case of the spouse’s death. If there is a valid will, the distribution of property will go under it. In the absence of a will or if the will is invalid, the children and the surviving spouse have the right to receive the whole property.

Is it Possible to Divide Property without a Court?

In both equitable distribution and community property states, spouses can independently agree on the division of family property. Many couples prefer this method as they know best what property they want to acquire.

To do this, both spouses have to agree to the terms. Lawyers can help negotiate this on behalf of each spouse. Mediation or a DIY approach to divorce can also accomplish this. But both spouses must agree to the terms.

When spouses come to terms, settling all marriage and divorce-related issues without relying on the court, this is called an uncontested divorce. In an uncontested or amicable divorce, your divorce agreement is submitted to the court after you and your spouse sign it. The court in turns reviews it, making sure that both spouses have no objection to their chosen division of property, and grants their request.

To best optimize your divorce for an uncontested or amicable divorce, you’ll want to read this article Top 6 Tips for an Amicable Divorce.

Final Words

If a couple cannot come to an agreement in an uncontested divorce, then their case becomes “contested” and the court will settle the breakup terms under the specific laws of each state and the couple’s circumstances.

However, it’s important to know as well, that new amendments and divorce laws are always appearing in legislation. It is wise therefore to consult with a divorce attorney in your state before you make any moves (including negotiating “casually” with your spouse). You will want to know specifically how a court would rule regarding your divorce issues and in particular, your claim to assets.

Though the research says women are happier than men after divorce, the research also suggests it is more challenging for women economically. This is a solid reason for you to get educated before you agree and sign anything.

Notes

Jamie Kurtz is a divorce lawyer and a member of the LA County Bar Association and the State Bar of California. She’s a co-founder of a law firm dealing with uncontested divorces and a contributing writer for OnlineDivorce.com, an online divorce papers preparation service.

Since 2012, SAS for Women has helped women face the unexpected challenges that women endure while navigating the divorce experience and its confusing aftermath. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you and your future. Join our tribe and stay connected.

How long does it take to get a divorce?

How Long Does it Take to Get a Divorce?

Divorce is a process, not simply a stamp of finality. How long does it take to get a divorce? Well, that depends… on factors both within and outside your control.

You may want a divorce yesterday, but even the speediest dissolutions are at the mercy of your state’s divorce laws.

And, even if the court is ready to give you back your maiden name, you and your future ex could drag out the process.

When factoring in the time quotient for getting a divorce, it’s important to recognize and embrace the entire process.

Divorce isn’t a fast-food drive-thru window. There are stages leading up to it and stages coming out of it.

When asking “How long does it take to get a divorce?” you may have only the pragmatic, legal, sign-on-the-dotted line timeline in mind.

But the bigger picture of going through a divorce involves questions like “How long does it take to get OVER a divorce?

That may sound irrelevant when all you want to do is have lawyers and courts—and your future Ex—out of your life. But recognizing the totality of the divorce process will help you make wiser choices in what you do and how you do it.

For example, even if the legal part of your divorce is relatively quick, you may feel as if your divorce takes years. From contemplation to grieving to making lifestyle adjustments, recovering, and healing, the entire process may take three to five years.

And what if you flounder in the contemplation stage, living in marital limbo without taking action?

Even if you find yourself paralyzed in your marriage, unable to move it forward and unwilling to leave, the clock still ticks. And not educating yourself on the process and truths of divorce can keep you in denial and prolong the inevitable.

When You’ve Decided to Proceed with Divorce

But let’s say your mind is made up and you’re determined to follow through with your divorce. Now you need to know how long those flaming hoops are going to take to jump through.

The primary determinants are your state or jurisdiction, your ability to come to agreeable terms with your spouse, and the judge’s schedule.

An uncontested divorce will always be facilitated more quickly than a contested divorce. So, even if you and your spouse could never agree during your marriage, divorce could be a good time to start.

The first thing you should do is familiarize yourself with your state’s divorce laws. Several factors may affect the timing and ease of your divorce, including:

If you have hired a lawyer to help you through the process, s/he will usually need a couple weeks to draw up the petition. And then your spouse will have anywhere from 20 to 60 days to respond after being served.

That means five to 10 weeks just to get the ball rolling, assuming you have met the time requirements mentioned above.

For Help, Turn to Mediators

So, how long does it take to get a divorce once you have filed and your spouse has responded?

Again, that depends.

If you have no children and relatively few (or at least uncomplicated) assets and little debt, you can potentially DIY it. Get the papers online, fill everything out, file, endure your state’s waiting period, and you’re done.

But, if you can’t agree on certain issues, you will need the help of professionals.

If your goal is to stay out of court, mediation can bridge the gap between the DIY divorce and a contested divorce. And it can be especially helpful if you have children or more complexity to your assets.

A mediator can be an attorney or even a therapist well-versed in the applicable laws. What’s important is his/her ability to help the two of you reach an agreeable solution to difficult areas such as custody.

Arbitration involves a third party who weighs both sides of the argument and decides on the settlement. While this approach keeps you out of court and waiting for a court date, it’s still a longer process than an uncontested or mediated divorce.

Finally, if your divorce is turning out to be too contentious for the above choices, there’s always court. And court means waiting for an available date in what may already be a backlogged schedule for the judge.

It also means attorney fees, court fees, and potentially drawn-out negotiations.

There’s the pre-trial. There’s the trial. There are the judge’s rulings that have to be written into court orders.

Then, if there is any disagreement with the rulings, there are appeals.

And, even after everything is agreed to and the judge signs off on your divorce, those rulings have to be carried out. Perhaps the house has to be sold or accounts have to be split or documents have to be changed.

And yes, that can mean months or even years.

You may want to do some research on the details of what happens if your divorce goes to court.

The Takeaway

If you’re starting to squirm and feel a little overwhelmed by all the possibilities, you’re not alone. Millions of women have been where you are, and each has her own story.

Leaning on women who have “been there” can be the best support for navigating this painful, unfamiliar process.

What’s the takeaway from this long answer to your question, “How long does it take to get a divorce”?

The most important realization is that you have more power than you may think you do.

You may feel challenged in exercising that power if your spouse chooses to make things difficult. But you always have the choice and the power to educate yourself and surround yourself with outstanding resources.

Ultimately, the time it takes for your divorce to be finalized will depend on you and your future Ex.

Can you bring the best, most composed, informed, prepared versions of yourselves to the table to advocate for everyone’s well-being and future?

If you can, your divorce will have to answer only to the timeline set forth by your state or jurisdiction.

And that means money and heartache spared… and a head start on your new life.

 

Since 2012 smart women around the world have chosen SAS for Women to partner them through the emotional and often times complicated experience of divorce. We invite you to learn what’s possible for you. Schedule you FREE 15-minute consultation with SAS. Whether you are coping with divorce or already navigating your life afterward, choose to acknowledge your vulnerability and choose to not go it alone.

 

Uncontested Divorce a by Weheartit

What’s the Difference Between an Uncontested and Contested Divorce?

When most people think of divorce, they think of conflict. After all, that is the image of divorce that we see time and time again. According to pop culture, it seems like the only way to call it quits is to engage in an expensive, lengthy, and stressful fight in which nobody really wins.

According to the CDC, America’s divorce rate has declined (in general) by 27.5% between 2000 and 2018, but it’s still a common enough experience, especially if you are a woman of a certain age. So, shouldn’t we find a better way to break up?

There are lots of great ways to skip the epic court battle in favor of a more peaceful approach. No matter the method, they all come down to one important key term: uncontested divorce.

What is a Contested Divorce?

Before we get into the details of uncontested divorce, let’s learn a little bit about contested divorce. This is the model of divorce which the uncontested ethic seeks to avoid.

Before your divorce is finalized, you and your Ex will need to figure out what to do about issues like property division, alimony, child support, and child custody. Sometimes couples begin the divorce process with a spirit of compromise, but often divorcing couples face major disagreements.

A contested divorce is when a divorcing couple is unable to reach a mutual agreement and therefore relies on a judge or arbitrator to develop divorce terms that are fair in the eyes of the law.

In general, contested divorce should be a last resort. It tends to be a more expensive, lengthier, and more stressful process than developing your own settlement agreement.

However, if your relationship with your Ex remains extremely adversarial despite your best efforts, then contested divorce is the best and only way to dissolve your marriage and begin the next phase of your life, a phase that may be more exciting than you can possibly imagine right now.

What is an Uncontested Divorce?

When a divorcing couple manages to reach their own settlement agreement, either by themselves or with the support of legal counsel or a divorce coach, they avoid needing a judge to make the important decisions. We call this an uncontested divorce. This means your and your spouse (or team) successfully negotiate divorce terms like child custody, child and spousal support, and the division of shared debts and assets.

There are a lot of reasons why an uncontested divorce is often the better option. For starters, it’s usually a lot less stressful than ending up in court.

It also tends to be faster than contested divorce, because you aren’t at the mercy of an overloaded court system. Because less time means fewer billable hours, uncontested divorces are also usually a lot less expensive than their contested counterparts.

Finally, when you opt for an uncontested divorce, you and your soon-to-be Ex retain a lot more control. The two of you have the final say in the terms of your divorce, and nothing can happen without both of you signing off on it. This can be especially important for parents, because it can be really hard to accept a stranger making decisions about your child.

This probably sounds really appealing, but is it really this easy?

As it turns out, you don’t actually have to like your Ex in order to cooperate with them.

How Uncontested Divorce Works

Uncontested divorce doesn’t mean that you and your spouse have to agree on everything right off the bat. Initially, the two of you only have to agree that you both want to make uncontested divorce work. Once that’s established, you’ll work together to choose the best method for your family.

Some lucky couples have pretty good communication to begin with, they just don’t want to stay married. These folks might be good candidates for DIY divorce. This means they fill out paperwork, draft their settlement agreement, and submit to their local court for the final approval.

If you and your spouse know what terms you want but are a bit intimidated by the process, we don’t blame you! If this sounds like you, then you might be better off ending your marriage through an online divorce platform.

These services handle the paperwork for you at an affordable flat rate. Some more comprehensive divorce packages will even manage your divorce case from start to finish. This means you won’t have to give it another thought after you finish answering their questionnaire.

Uncontested Divorce Support

You can also work with a mediator if you’d like. Mediators usually have a background in either law, psychology or finance, and they are trained to help you and your spouse negotiate more effectively. They cost more than an online divorce platform, but usually much less than a full-on court case.

Finally, you may rely on traditional divorce attorneys who have proven themselves as good negotiators. Hiring an attorney does not mean you are necessarily going to court. What is means is that you are relying on this traditional model to change the status of your marriage. Using a divorce attorney to advocate for you may wise if you have children, assets, or considerable debt.

Regardless of what model you decide upon as you seek your uncontested divorce, at SAS for Women, we recommend that every woman secure a private legal consultation with a divorce attorney (not a mediator, nor a collaborative divorce attorney first) to hear what your rights are and what you are entitled to BEFORE you and your spouse start splitting things up.

Is Uncontested Divorce Right for You?

For some divorcing couples, uncontested divorce is a no-brainer. They can agree on divorce terms immediately, they get along well enough, and they’re ready to take on this new project with gusto or determination.

For others, uncontested divorce is a goal to work towards, but they’re not sure if they’ll be able to manage it. Well, I’m here to tell you that when both parties have the right attitude, this goal is utterly attainable.

When it comes down to it, the key to a successful uncontested divorce is not sweating the small stuff. You shouldn’t let yourselves get riled up over every last piece of silverware, or you won’t maintain the calm necessary to stay out of court.

Instead, focus on the big things like your home, car(s), and, most importantly, your kids. If you can sort out these complex issues, the rest will fall into place.


If you are thinking about or beginning the divorce process, consider Annie’s Group, our virtual group coaching program for women looking for support, structure, and a safe community.


It can also be really helpful to take a deep breath and remind each other why you want to keep your divorce uncontested whenever you feel tensions starting to rise. It benefits everyone involved when you take a more peaceful approach to divorce.

When in doubt, re-focus on what matters.

If you and your Ex are parents, it might even help to keep a physical copy of your child’s photo on the negotiating table. It’s nice to constantly have that implicit reminder of why you’re doing this. The more time and money you spend on your divorce, the less you have left over for your kid.

Breaking up is almost always a difficult prospect. When you said “I do,” you expected it to last forever, and it can be really hard to give up on that dream. It can be hard managing a household alone, or sleeping by yourself, or not seeing your spouse across the dinner table.

However, just because breaking up is hard doesn’t mean that the divorce process has to be. If you’ve been searching for a way to approach your divorce with a greater degree of mutual respect, consider this the sign you’ve been waiting for.

 

Notes

Moriel Berger is a Los Angeles native with a background in writing and marketing, primarily in the startup world. She is a J.D. Candidate at Loyola Law School and holds B.A. in Liberal Arts from Sarah Lawrence College. After watching her parents go through a prolonged and painful divorce when she was in her early twenties, Moriel became inspired to learn about more positive alternatives, which eventually led her to join the team at It’s Over Easy.

SAS women are those amazing ladies you meet who are entirely committed to rebuilding their lives on their own, healthiest terms. If you are recreating after divorce or separation, you are invited to experience SAS for Women firsthand. Schedule your FREE 15-minute consultation. Whether you work further with us or not, we’ll help you understand your next, black-and-white steps for walking into your brave unknown — with compassion, integrity and excitement.