Divorced Persons and Property Rights

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Are a Person’s Property Rights in a Divorce?

A person’s property rights in a divorce depend on the state where they live, as divorce is a matter of state law. Each state has its own laws regarding how property will be distributed between spouses who plan to dissolve their marriage or get a divorce. States can be sorted into either community property states or non-community property states.

Community property refers to any property that a married couple acquires during their marriage.

Community property states include the following:

  • Arizona;
  • California;
  • Idaho;
  • Louisiana;
  • Nevada;
  • New Mexico;
  • Texas;
  • Washington;
  • Wisconsin.

In these states, the assets that belong to a married couple are classified as either community property, i.e., property owned equally by both spouses or separate property belonging to one spouse only. In a divorce, community property is divided equally between the spouses, while each spouse keeps their own separate property.

Separate property is property that one spouse acquired before they got married and during the marriage by inheritance. Or the spouses may have a prenuptial agreement that says that a certain asset is the separate property of one of the spouses.

Of course, debts are part of the picture as well and must be divided between the spouses.

In all other states, all of the assets acquired during a marriage are divided equitably between the spouses. In order to determine an equitable division, that is, one that is fair to both parties, the court considers many factors. For example, the earning history of each spouse, earning potential of each spouse, and the duration of the marriage.

Other factors are considered as well. Additionally, a court considers the financial position each spouse can be expected to have after the divorce. So, for example, if one spouse has a profession and the other has to get an education and prepare to enter the workforce, this might affect the distribution of their marital property.

Simply put, community property states dictate that each spouse has an equal share in community property, while separate property is distributed in full to its original, legal owner. Non-community property states, or equitable distribution states, might have varying rules regarding property that a couple accumulates during marriage.

What Are My Property Rights After a Divorce?

In many divorce cases, the couple filing for divorce can work together on their own to reach an agreement regarding the division of their property and debts. They can then submit their agreement to a court for approval.

If the spouses cannot make such an agreement, a court must step in, hear evidence and apply state law to arrive at a distribution. Generally, once a court issues a divorce decree, the decree is final and legally binding upon both parties. A court enforces the decree if either of the parties fails to follow it.

The general rule is that divisions of property ordered in a final decree of dissolution of a marriage may not be modified at a later date. However, in reality, limited modifications of a decree regarding the division of property might be available.

Some common examples of situations in which property divisions might be modified after a divorce include the following:

  • Decree Not Yet Final: A divorce decree does not become fully final as soon as a judge makes it. Instead, the finality of the final decree is delayed for a short period of time, generally in most states around 3 to 4 weeks. During this period, a court may still reconsider and modify a final decree on an equitable basis.
  • Errors Made During the Divorce Proceedings: If any party made an error during the proceedings, this could require a recalculation of marital assets to be distributed. In order to claim this, it must be proven that an error was, in fact, committed and that the property division should be re-evaluated.
  • Changed Circumstances: In some states, a family court might allow modification of property distribution if one party shows that their circumstances have changed significantly, but a court would do this only for the most compelling of reasons.
  • Appeal: Divorce rulings can always be appealed. An appeal can be made because the judge who issued the decree made an erroneous ruling. Or, if new information or evidence were to come to light, it might serve as the basis for an appeal. Another situation that could lead to an appeal is if a judge abused their discretion.
  • Modification as Enforcement: Modification may be made when it is done in the course of a court’s enforcement of a decree. The rationale for this is the belief that no court can anticipate a determined spouse’s efforts to avoid an award. The rule against modification cannot serve to frustrate a court’s enforcement of the decree.
    • For example, where the court orders a party to convey a specific asset or pay a specific debt, and the party does not comply, the court can issue a money judgment against the party for the value of the asset or debt in question. Such a judgment is enforcement and not modification.
  • Duress: A judgment can be reopened if it is a product of duress. For example, in one reported case, a husband took his wife to his lawyer to sign a stipulation regarding the division of their property when she was in extreme emotional distress. He also threatened to take the children and threatened her life if she did not sign the stipulation. The judgment could be reopened on these facts on the grounds of duress.
  • Fraud: Fraud is another ground for modifying a divorce decree. Fraud is an intentional effort by one spouse to use misrepresentation in the process of property division. Fraud can be more difficult to detect than duress, but it is reported more frequently. Most of the reported cases involve misrepresentations of divisible assets’ existence or value.

There are other grounds as well. Much depends on the case law in the state where a person would seek to modify a final decree of divorce.

Who Keeps Specific Property?

The most common questions regarding property rights after a divorce usually involve the house, the vehicles, and the pet. Ownership of the house after several factors determine the divorce. One important factor may be child custody, as in which party has been granted custody of the child. The parent who has been granted primary physical custody of the child is more often the party who retains the home.

If there are no dependent children living at home, the house may then be distributed based on the previously discussed property rules. Until the divorce is final, the house belongs to the owners listed on the property’s title. After a divorce, if one spouse is granted ownership of the family home, the other may be granted other property equal to their interest in the home. Or the spouse who gets the home may have to buy out the ownership interest of the other spouse.

Recently, pet custody has become an issue in divorce court. Pets were once viewed as personal property. In some states, they still are. This means that pets were often given to the spouse who purchased the pet. Or custody of the pet might be granted to the spouse who most often took care of it during the marriage.

While pets are still considered to be property, spouses may share custody. Or one spouse may be given visitation rights to their pet if pet custody is contested.

Ownership of vehicles differs based on state law, as well as each individual case. Some states treat a vehicle as community property to be divided, which may be awarded to the spouse who most requires its use. An example would be awarding the vehicle to the spouse who needs to drive to work or is responsible for driving the children to school.

In other states, a court may treat a vehicle as separate property and award it to the spouse whose name is on the title. Another instance where this is true would be in a community property state if the spouse whose name is on the title acquired it before the marriage.

Do I Need an Attorney to Protect My Property Rights?

While most divorce decrees concerning the division of property would be considered final, they can be modified in some cases. To find out if you have grounds to modify a divorce decree, you need to consult a property division attorney. A skilled and knowledgeable family law attorney can assist you with any issues you may have regarding property division in a divorce.

Save Time and Money - Speak With a Lawyer Right Away

  • Buy one 30-minute consultation call or subscribe for unlimited calls
  • Subscription includes access to unlimited consultation calls at a reduced price
  • Receive quick expert feedback or review your DIY legal documents
  • Have peace of mind without a long wait or industry standard retainer
  • Get the right guidance - Schedule a call with a lawyer today!

16 people have successfully posted their cases

Find a Lawyer