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Divorced Persons and Property Rights

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What are Property Rights in a Divorce Setting?

Every state has laws which outline how property is to be distributed between the parties in a divorce setting.  The basic distinction between state laws is whether the state is a community property state or a non-community property state.  Community property is any property that is accumulated during marriage. 

In a state that follows community property rules, each spouse will have an equal share in community property, while separate property will be distributed in full to its legal owner.  Non-community property states may have different rules regarding property that is collected by the couple during marriage. 

What are my Property Rights after a Divorce Ruling?

Generally speaking, divorce orders are final and binding upon both of the parties.  However, there are some instances where property issues may linger even after the divorce proceeding has been concluded.  In such rare cases, each party may have different rights after the divorce ruling has been issued. 

Some common situations involving property distribution after divorce include:

  • Errors made in the divorce proceeding:  If errors were made during the hearings, it may require a recalculation of the marital assets.  This would require proof that an error was in fact committed, and that the property should be re-evaluated.
  • Relocation during divorce proceedings: If either spouse moved during the divorce or close to the time of divorce, it can have effects on the property distribution.  This is especially true if the party moves from a community property state to a non-community property state.
  • Appeal:  A divorce ruling may be appealed under certain circumstances.  For example, if new informational evidence is obtained after proceedings that would have affected the outcome of the previous divorce suit, it may form the basis of an appeal.  Abuses of judiciary discretion can also lead to an appeal. 

Finally, any instances of fraud or misconduct by one party can cause them to lose their property rights in connection with divorce. This includes attempting to hide property so that the court will not distribute the property. In fact, some states require a showing of fraud before they will consider altering a divorce decree.

Who Retains the House?

Ownership of the house after the divorce will be determined by certain factors. The most important factor is child custody; the parent with custody of the children can usually retain custody of the house. If there are no dependent children, the house may be disturbed based on the property rules described above.

Remember that until the divorce is final, the house belongs to the owners listed in the title of the property. Assuming that both spouses are listed as owners, it is illegal for one spouse to lock the other spouse out of the house. Please call the police if a “lock-out” occurs.

Who Retains Custody of the Pet?

Pet custody is becoming a more commonly litigated issue in family law. Pets were once viewed only as personal property and were thus given to the spouse who purchased the pet. Today, however, pets are almost on the same pedigree as children in divorce proceedings. Pets are still considered property, but spouses may share joint custody or be given visitation rights to see their former pets.

Who Has Ownership of the Vehicles?

Ownership of the vehicle defers from state to state and may also defer from case to case. Some states may treat the car as community property to be divided. If the vehicles are community property, they may be awarded to the spouse who requires their use the most. For example, a spouse who needs to drive to work or drop the kids off at school may be awarded the vehicle.
In other states, the vehicle may be treated as separate property if the vehicle was indeed separate from the relationship. If one spouse has title over the vehicle and uses his or her own money for all the vehicle’s payments, including maintenance, that spouse will most likely retain control. 

Can I Retain Possession of the Vehicle During the Divorce?

Many states will allow a spouse to retain possession and use of a vehicle provided that the spouse can provide he or she needs the vehicle. Ownership of the vehicle after the divorce, however, will be decided as a separate issue.

What about Wedding Gifts?

Ownership of the gift will depend on the nature of the item, the gift giver’s intention and the exclusive possession of the property in question. Rules will differ from state to state. Generally, a real gift will be the property of the spouse who receives them because the gift giver meant for the gift receiver to permanently own the gift.

However, a spouse may not abuse the legal doctrine of gifts to retain property that is actually community property. A wedding ring is a gift. Jewelry given on a birthday or anniversary is a gift. The bed which the spouses used to share is not a gift.

Do I need a Lawyer for issues with Property Rights after a Divorce?

If you have any issues regarding the distribution of property in a divorce case, it is helpful to retain the services of a divorce lawyer.  An experienced family law attorney will be able to tell you what your options are under the laws of your state.  While most divorce decrees are generally considered to be final, there may be several alternative remedies available in your situation.  

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 06-07-2018 02:19 AM PDT

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