Who gets what in a divorce?

Tags: Property Division, Finances

By Steffan Lawson

Published Jul 22, 2022


While there are a lot of factors that go into determining the exact value and amount of property that goes into your name, you might find yourself much better off after a divorce.
Popular knowledge of the benefits and drawbacks of divorces have now been placed equally as against the past when it was all filled with doom, gloom and despair. This popular knowledge is substantiated with stories of freedom from abusive marital relationships that have inspired others to follow along the same line.

No doubt there are more and more married couple that are applying for a divorce now. So if you are prolonging your marriage solely so that you are not cut off from your supply of living needs, it is time you went through a thorough description of all those things that you should consider during your divorce, and what you might end up getting out of it.

Informed knowledge about the details of divorces might help you gain a vital upper hand when it comes to negotiations regarding property, assets and other such things. Read through this guide that addresses a lot of the doubts associated with divorces and who gets what through a divorce.

Complex Finances: Get an Attorney on Board

The first thing that you should be looking at is getting yourself an attorney that can fight for you. With the formalities and legal procedures that differ from one state to another, it can get extremely cumbersome to figure all the paperwork out by yourself. Despite the steep prices that attorneys can charge for their services, it makes for a very important investment as he might be the sole reason that you end up with a lot of assets in your name. Therefore, bite the bullet and pay for a good lawyer who will fight for your corner right up to the end.

One: State Divorce Laws and Their Impact

The first and most important factor to consider is the state under which the divorce will be filed. This will determine the law under which your case will be viewed and how it will be assessed. State laws relating to divorce in America can be one of two types, both of which go a long way in determining the outcome of the divorce.

States with equitable distribution

The law of equitable distribution is what most states follow, where the assets and earnings associated with the couple are all divided in a fair and equitable manner. In states that use such a distribution law, there are considerations that are made for factors relating to both individuals like their capacity to earn for themselves and the sacrifices that have been made for the family like giving up a career to bring up a child.

Another consideration that is generally made is that of the duration of the marriage – a short time period works against distributing one spouse’s income earnings to another. If a spouse has overlooked a career to bring up a child, they tend to get a larger share of assets as well. Not only this, the number of children and their ages might also be factors that go into determining the amount of child support and alimony that is paid to the primary custodial caretaker.

States with community property

The other type of law that applies to certain states is that of community property. This law is one that allows judges to divide all marital property into half. Some consider it a clean and swift method to deal with assets and property when it comes to a divorce.

The individual comes into the picture when determining the amount of child support and alimony. Their earning capacity and life situation are reviewed to determine an adequate amount that will not drive them into poverty. Certain states have generous laws when it comes to alimony and child support, and spouses that lived at home to bring their children up might get massive amounts of alimony for those reasons. Some of the states that have community property laws in the United States are California, Texas, Idaho and Nevada.

Two: Classification of Property

Once you have figured out the first step in understanding state laws, the next thing to consider is the classification of property. Property can be classified in one of two categories: separate or marital property. The classification of property also goes a long way in determining what you get on your side when all the dust settles during the divorce hearings and negotiations. Understanding what goes where is imperative for the same reason.

Separate property

Separate property, as the name suggests, is the property that belongs to you as an individual irrespective of your marriage. States differ on the specifics of separate property, but a general list of what it entails is as follows:

  • The property that is owned by either spouse prior to marriage.

  • If either spouse received an inheritance to their name during or before the marriage.

  • Property that was received as a gift to any one of the spouses by a third-party.

  • Payments received for pain and injury.

  • All property that is acquired by either spouse after a legal separation has been decreed.

  • Any other properties.

One must understand that this property is accepted as separate only based on the final decision of a judge and might not be deemed separate if the property is commingled with marital property. So, for example, your family has gifted you a house that you owned before your marriage. Let’s say that you changed the ownership status on it midway through your marriage and made your husband a co-owner. This would then not count as a separate property anymore and would become marital property.

Marital property

All property that is acquired during the time span of the marriage, irrespective of how it is titled or financed is considered marital property. It does not matter if it has only a singular name on the ownership agreement and other such legal documents. Marital property is considered as a whole and then distributed based on the state laws under which the divorce is being made. It does not matter if someone takes marital property during the time of a marriage and puts in in another name or attaches it to a separate bank account. While deeming a property’s classification, thorough investigations are made to trace the source of separate property. Only if the source holds true will the property be considered separate. So such attempts are usually of no use.


When it comes to property classification, the biggest issue that couples face is that of commingling. This occurs when either of the spouses takes separate property and mixes it with marital funds. If a spouse sells a home that was owned before marriage and uses all of part of that money to buy a new house, an issue of commingling can occur. If the other spouse also invested money into this new house, it would be considered commingled. Thus, the acquired value of the previous house that was under your name would not be considered separate anymore and would have to be considered as part of the marital property.

Three: Property Distribution

Based on the state that you are in, you will have gained a fair idea of the types of laws under which you will be operating. The likelihood of being in a state with equitable distribution is much higher than that of being a state with community property laws. If you are in a state with equitable distribution, the division of property is made on the basis of several factors:

  • Each spouse’s contribution to the acquisition of the marital property including the contribution of a homemaker.

  • Property value set apart to each spouse.

  • The financial and economic situation surrounding each of the spouses at the time of effective property division. This would also include the consideration of awarding the family home to the person in need and instilled responsible to take care of the children that were born out of the marriage.

Any change in value, both increase and decrease, of the spouse’s separate property. An equitable distribution of all these aspects of property is made in specific states. Equitable and equal are not the same and that is where current financial situations as well as economic capacity of sustenance and further earning capacity is assessed to come up with a fair distribution of property along with child support and alimony. So do not expect that the assets will be distributed in a perfectly equal manner as considerations for each individual will be weighed into the entire settlement. You could also be asked to sell certain marital property in order for it to be divided between the parties involved.

There are certain times when divorces go down amicably and both parties involved consider a mutual division of property based on needs and requirements. If there is a case in which both parties involved agree upon a specific way of dividing property, judges end up approving the case more often than not. If there is harmony maintained in the process of division, the courts will ask you to fill out a “Final Decree of Divorce” form such that it reflects everything about the mutual division of property as agreed by both parties.

Four: Who gets the house in a divorce?

As has been clarified, there are several ways in which division of property happens. This is based on classification of property as well as the state laws under which you operate. The most important aspect that most couples have to decide over is the family home. In a state that operates under the laws of community property, a judge will divide all community and marital property equally.

This means that based on the economic and family situation such as children, one spouse will be given the house whereas the other will be asked for a buyout. So if your family home costs $200,000 in equity value currently, the house might be offered to one spouse whereas the other spouse would have to agree to take a payment of $100,000 which would be considered as a return for the ownership of the house – a buyout.

This, however, is not the only consideration that needs to be made when it comes to using the house after the divorce. Costs of maintenance and daily living might be too steep for a single spouse along with children. There are other considerations that also must be made when it comes to sustaining the stay at the family home. So while the judge might be able to grant you the family home, you might want to make a fresh assessment of your individual economic and financial capacity going forward.

Five: Debt and Divorce

When it comes to a divorce, the distribution of property is based not on the physical division of property, but it is about the valuation of the property. Based on the economic and financial conditions of each spouse, a specific percentage is allocated to either spouse that would then be equated in the form of property. Each spouse would, therefore, get some personal property, assets as well as debts that are divided based on the current market valuation of the same. Therefore, one of three things can be done when it comes to debt:

  • Divide the entire amount and take a share of it.

  • Service the debt jointly until it is paid.

  • Pay all the debt off.

The most recommended of these options is obviously the final one because that would then lead to a much cleaner and quicker division of assets during the course of the divorce. However, that might not be possible all the time as couples might not be in a position to make those amounts of payments. If you have to determine the best way to pay the debt in the future, you might have to be prepared for contact with the spouse after the divorce.

Credit card companies, for example, are not bothered with the personal happenings in any debtors life and are required to collect money based on the initially agreed method. It doesn’t matter what the property agreement was at the time of the divorce. There have been cases where companies have gone behind both spouses even if one spouse has taken the burden of paying that specific credit card company’s debt.

Generally speaking, the debt that is divided amongst both spouses is only the marital debt. The individual debt that is incurred on specifics remains with the individual irrespective of their marital status or situation as it is not affected by it. Marital debt that is unsecured is once again allocated to each spouse based on the valuation and share.

Six: Ownership of Land Other Than Home

Sometimes couples own property other than their family home when they decide to get divorced. If that is the case, it might be critical that a lawyer fights for your end because of the various possibilities in states with communal property laws. There have been cases where the ownership of the property has been lost but the mortgage of the property is still to be paid.

This is because the payment of mortgage is unaffected when it comes to the divorce decree that is issued by the court. Let’s say you and your spouse were paying a mortgage for a piece of land which was given to your spouse as part of the divorce settlement. This would mean that the mortgage would be taken from him. However, if he does not pay the money, mortgage companies could possibly come to you asking for the same money irrespective of the lack of ownership. So make sure that your lawyer handles the details of land and property other than the home when it comes to the divorce.

Seven: Who gets the Car?

There are two things to consider while determining the ownership of the car. First is the physical ownership of the car which would relate to the person that ends up keeping and using the car. The second consideration is that of the financial ownership of the car. The court might divide the assets in a way such that you do not get the car. If that is the case and you are the owner of the car according to the paperwork, it might be critical to transfer the ownership.

If there is a debt that is to be paid with respect to the car, it is important to transfer that to the new owner as well. Otherwise, there might be a situation where you are chased for debt repayment while the new owner of the car is not around. If the spouse is unwilling or unable to pay the debt, you will be contacted. So make sure you get your name off the debt along with the ownership of the car.

Eight: Retirement Accounts (QDRO)

One of the final and most important factors of the divorce is the retirement savings. Often the highest in volume, these are the most valuable for the sustained future of both parties. The proceedings of the retirement accounts can be quite complicated but are necessary. A large number of couples filing for a divorce have one person in the couple on an employer-sponsored retirement plan such as a pension plan or a 401(k).

Technically, if your spouse has one of these employer-sponsored plans, you are entitled to a part of that payout unless you have signed a prenuptial agreement that says otherwise. The usual concern that most people have regarding this is whether or not the spouse will actually end up paying that amount of money over the many years in the future. The answer for this is the QDRO.

Qualified Domestic Relations Order (QDRO)

A Qualified Domestic Relations Order is a court order associated with alimony, child support as well as property rights that can instruct a spouse’s employer-retirement plan on how to pay off your share of the benefits in the coming future. This document acts as a safety net for your rights when it comes to the pension plan that your spouse is being given.

Funds in the retirement savings account are separated and withdrawn without penalty to be deposited into your retirement account. Banking solely on the divorce decree that states your right to retirement funds is not the right thing to do because of cases where employers have not bothered about the decree and have gone out to provide benefits only to the employee. Therefore, a QRDO acts as a much-welcome safety net.

As is clearly elaborated, there are a lot of factors and considerations that determine the exact details of a divorce when it happens. A divorce might be a very uncomfortable situation to be in if you are not expecting it and are not equipped to deal with the procedural requirements of it.

Therefore, it is imperative that every married spouse goes through the details of divorce settlements that apply to the place they reside in so that they are well informed and prepared to deal with the consequences and repercussions of the divorce once the settlement is determined. It is also very important to find a good source of advice when it comes to divorce because of the impact it may potentially have on your individual future as well as that of your children.

Hiring a good lawyer and taking preventive measures to secure and protect the value of property might be a good idea such that the division of property can be clean and quick when the time comes. Understanding the details of this article will go a good distance in helping you secure your assets before walking into a divorce hearing.