Each state has its own laws regarding how property is to be distributed between the parties involved in a divorce, or the dissolution of a marriage between two people. However, most states can be divided into either community property states, or a non community property state. Community property refers to any property that is accumulated over the course of the marriage.

Community property states include:

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

In these states, all property belonging to a married person is classified as either community property (i.e. property owned equally by both spouses), or the separate property belonging to one spouse. During divorce proceedings, community property is typically divided equally between the spouses, while each spouse keeps their own separate property.

All other states are non-community property states, or equitable distribution property states. In these states, the assets and earnings accumulated over the course of the marriage are divided equitably. In order to determine an equitable division that is fair to both parties, the court will consider many factors, such as the earning potential of each spouse as well as the duration of the marriage. Additionally, they will consider the financial position that each spouse will be in post divorce.

Simply put, community property states dictate that each spouse will have an equal share in community property, while separate property will be distributed in full to its original, legal owner. Non-community property states, or equitable distribution states, could have different rules regarding property that is accumulated by the couple during marriage.

What Are My Property Rights After a Divorce Ruling?

In many divorce cases, the couple filing for divorce is able to work together on their own in order to reach an agreement regarding the division of their property and debts. If such an agreement cannot be reached, a court will need to step in and apply state law in order to settle the dispute. Generally, once a divorce is finalized, the divorce orders are final and legally binding upon both parties.

However, there are some cases in which property issues persist, even when the divorce proceedings have concluded. These are rare cases, and each party may be entitled to different rights once the divorce ruling has been issued. Some common examples of such situations involving property distribution after divorce include:

  • Errors Made During the Divorce Proceedings: If an error was made during the proceedings by any party, 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 should be re-evaluated;
  • Relocation During Divorce Proceedings: If either spouse involved in the divorce proceedings relocated during the divorce, or close to the time of the divorce, it could affect property distribution. This is especially true if the party moves from a community property state to an equitable distribution property state; and
  • Appeal: Divorce rulings can be appealed under specific circumstances. An example of this would be if new information or evidence is obtained after the proceedings. This new information or evidence could affect the outcome of the previous divorce suit, and as such, it could form the basis of an appeal. Another example of a situation which could lead to an appeal is when judicial discretion has been abused.

Any instances of fraud or misconduct from any involved party can cause that party to lose their property rights in connection with the divorce. An example of this would include attempting to hide property in order to avoid the court redistributing the property. Some states require a showing of fraud before they will consider altering a finalized divorce decree.

Who Retains Specific Property?

The most common questions regarding property rights after a divorce involve the house, the pets, the vehicles, and wedding gifts. Ownership of the house after the divorce is determined by a few different factors. The most important factor is child custody, as in which party has been granted custody of the child. The parent who has been granted legal custody of the child is generally the party who will retain 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. As such, if both spouses are listed as owners, it is actually illegal for one spouse to lock the other out of the house. However, in cases where the spouses are unable to be around each other, courts will often temporarily order possession of the home to one spouse during the pendency of the divorce proceedings.

Recently, pet custody has become a more commonly litigated family law issue. Pets were once viewed as personal property. This means that pets were often given to the spouse who purchased the pet. While pets are still considered to be property, spouses may share joint custody or even be granted visitation rights to see their former pet if it is determined that the pet is actually contested property.

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

In other states, a vehicle could be treated as separate property and be awarded to the spouse whose name is on the title. Many states will allow a spouse to possess and use the vehicle given that they can prove that they need the vehicle. Ownership of the vehicle post divorce is a separate issue.

Ownership of wedding gifts depends on the nature of the gifted item, the gift giver’s intention, and the exclusive possession of the gift. In general, a real gift is the property of the spouse who receives them because the gift’s giver meant for them to permanently own the gift. However, it is important to note that a spouse may not abuse the legal doctrine of gifts in order to retain property that is actually community property.

Do I Need an Attorney to Enforce Property Rights?

A skilled and knowledgeable family law attorney can assist you with any issues you may have regarding property distribution in a divorce case. While most divorce decrees are considered to be final, there could be alternative remedies available depending on your situation.

An experienced family law attorney can inform you of these remedies, as well as represent your interests in court as needed.