How to Divide Marital Property During Divorce

5 tips to help you divvy up your assets—amicably

Woman carrying a packing box into her new home
 Getty Images/10'000 Hours​

Building a life with someone means sharing love, memories, and, on a less sentimental note, a lot of stuff. So when the decision to divorce is made, the process of parting ways isn't as simple as slamming the door and driving off into the sunset (though wouldn't that be nice?). Instead, it involves (among other things) the sometimes tedious task of dividing your property—that is, all of the assets each of you has accumulated during your marriage.

Here are a few tips to help you keep the process as seamless and pain-free as possible.

Keep it civil.

This is easier said than done, of course, but the whole process will go by more quickly and easily if you and your soon-to-be ex are able to reach a settlement agreement on your own, without having to spend time and money in family law court. That's not to suggest being a pushover, however. It's a good idea that you and your spouse both hire legal representation to mediate, provide guidance, and help ensure a fair agreement is reached. 

Be fair, open, and honest. 

The process of dividing marital property begins with taking an inventory of all you, as a couple, have acquired during the marriage. Anything you owned before the marriage and anything inherited during the marriage will not count as marital property. Have money stashed away in a personal account? Don't try to hide it. Divorce attorneys are pros at identifying assets that are tucked away out of sight.

To keep from being penalized later on in the process, it's best to lay all your cards on the table at the get-go.

Know the difference between separate and community property.

Before you start itemizing everything you own, you should know how the legal system categorizes your assets. (This is especially good info to have should you need to go to court to reach a settlement.) Property acquired during a marriage is separated into two classifications: separate property and community (marital) property.

Separate property: This is property that you and your spouse own individually and that was never shared, such as assets owned before marriage, assets acquired after the date of legal separation or divorce, and property inherited or received as a gift during the marriage.

Marital (community) property: This is property that was acquired, earned, or obtained during the marriage, such as income, retirement earnings, money put in a joint account, and physical property.

Determine the property ownership system used in your state of domicile.

If you and your spouse are court-bound, then make note of the property ownership system used in your state of domicile. Falling into two systems—common law and community property—these systems will tell you what to expect in terms of how the judge might divvy up your marital assets.  

Common law: Under this system, property owned by one spouse is his or hers alone. This applies to gifts, household items, and anything deeded or registered under one spouse's name (think cars, houses, land, etc.). Property is distributed fairly, but not necessarily equally.

Community property: This system states that all property acquired during a marriage is owned jointly by the couple, regardless of whose name is on the paperwork.

The idea here is that because marriage is a partnership, everything acquired during the marriage (including debts) is jointly owned and should be divided 50/50. Only seven states follow this system of property ownership: Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin.

Don't sweat the small stuff.

Your state's property ownership system will take precedence over any drama you bring into the courtroom, so in the interest of self-preservation, it's best to check your emotions at the door. Remember that it's the judge's job to remain impartial and that the property will be divided according to your state’s laws, not according to your wishes.