How does the division of property work after a divorce in your state?
When a marriage ends, dividing up the assets can be a big headache. Each state has different guidelines for how the division of property should be handled. We reached out to some legal experts to find out how this is handled in their states. Keep reading to see what they had to say.
Lauren Blair is a lawyer with FreeAdvice.com. She has over 25 years of experience in family law.
Illinois Marriage and Dissolution of Marriage Act
The Illinois Marriage and Dissolution of Marriage Act (IMDMA) governs how the division of property works. Generally speaking, there are two steps to determining what happens to property in connection with a divorce in Illinois.
Before deciding who gets what, the first step is to classify property as either marital or non-marital property.
Section 503(a) of the IMDMA defines marital property as all property acquired during the marriage. The Act lists eight types of non-marital property including, all property acquired before the marriage, gifts, legacies, and descend, as well as property excluded under a lawful premarital or postnuptial agreement.
Once the property is properly classified, it will then be divided as follows:
- All non-marital property will be assigned to the party that owns it.
- All marital property will be divided equitably between the parties.
Keep in mind that an equitable division does not necessarily mean an equal division. Illinois is not a community property state wherein spouses are entitled to 50% of the marital assets. An equitable division means that all property in the marital estate will be divided based on what is fair.
The IMDMA lists several factors that courts must consider when dividing marital property, such as the duration of the marriage, the spouses’ contributions to acquiring or improving the property, and the spouses’ age, health, ability to earn income, and overall financial circumstances.
For example, let’s say you have a long-term marriage where the husband is gainfully employed with significant income earning potential, whereas the wife cares for the children rather than being employed outside of the home. In that case, a court may award her a disproportionately greater share of the marital assets because she needs help being able to provide for herself.
Most divorce decrees, also known as Judgments for Dissolution of Marriage, require that the parties divide the assets within a specified timeframe, typically within 30 days. If a party fails or refuses to turn over property to the other spouse promptly, the court can impose sanctions and even jail time for the offending party until they comply.
Marital Property in New York is Split on Fairness
The division of property linked to divorce is fairly straightforward in New York, and both spouses have the right to their own property. However, the difficulty lies in the property that’s shared. This property is called marital property, and this is what will be decided under the discretion of a court if an agreement cannot be made.
The way in which the marital property is split is based on fairness for both spouses, rather than it being an even split of the goods. This is seen as a fairer way of splitting the marital property as it’s based on the best solution for both parties. A clean, 50/50 split is not always the best option to consider, and can often be rather unfair, too.
Texas Community Property is Divided in a Just and Right Manner
Texas is a community property state. The first step in dividing property in a divorce is to characterize all the assets and debts as either separate or community property. Separate property includes property owned before the marriage, gifts or inheritances acquired during the marriage, monetary recoveries for personal injuries, and property gifted from the other spouse. Separate property is not divided in a divorce. All assets and obligations accumulated during the marriage are considered community property. Community property is divided in a “just and right manner.” This usually means a 50/50 split.
If a spouse can prove one of the fault grounds for divorce in Texas – cruelty, adultery, felony conviction, and abandonment – they may be entitled to a favoring disproportionate share of the property. Courts would take into account what the spouse, not at fault, would have received had the marriage continued.
Equitable Distribution of Property in New York and New Jersey
New York and New Jersey are equitable distribution states when it comes to property division. That means that marital property, which refers to almost all assets acquired during the marriage irrespective of which spouse’s name the asset is in, is divisible, but it does not necessarily have to be an equal division. It just has to be equitable, or fair.
There are a number of factors that must be weighed in when deciding how to equitably divide marital property, including the length of the marriage, marital standard of living, ages and health of the spouses, incomes and earning capacities of the spouses, tax consequences, the need for a parent to live in a home with children, and the values of the assets and debts.
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