Community Property Versus Equitable Distribution
Each state has its own divorce laws. Concerning issues of child custody and visitation, the differences may be minimal. When it comes to the distribution of assets accumulated during the course of the marriage, the differences could be major. Nine states divide property according to community property law. Community property states include: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. All other states apply equitable distribution principles and rules to allocate the assets. There are some major differences in the two approaches.
Community property distribution
All assets accumulated by the parties during the course of the marriage are considered owned jointly by them. Courts basically add up the value of the assets and then divide that in half with one half of the assets distributed to each party. It is a simple mathematical procedure with no other contributing factors.
In awarding spousal and child support, the courts in a community property state may consider how long the couple has been married, the age of each party or ability of either one to be employed based on their health or employment background even though these factors are not considered in the distribution of assets.
Equitable distribution of property
Equitable distribution states allow divorce courts a lot of discretion in dividing marital assets in an equitable, or fair, manner. Courts can consider any relevant factor in achieving an equitable distribution. The most common considerations include:
- Length of the marriage
- Age of the spouses
- Health of each spouse
- Ability of each spouse to support themselves
- The fact that one spouse did not pursue a career in order to care for children
A court may balance a small award of spousal and child support with a greater distribution of assets. In some states, although not the law, a fair policy provides for one party to be awarded at least one-third of the assets accumulated during the marriage.
Negotiated divorce settlements allowed in all states
Whether they live in an equitable distribution or community property state, the parties can choose to negotiate their own property settlement that courts will honor. Their distribution agreement does not have to follow the laws of their state. The parties who are able to negotiate their own property settlement without court intervention are generally the most satisfied.
Divorce is an emotional time for both parties. Before giving up any rights or agreeing to any distribution of assets, you should consult a qualified and experienced divorce attorney who can negotiate a fair settlement or prepare your case for trial if necessary.
About the Author
Stacy Rocheleau, Esq. - Owner and managing partner of Right Lawyers in Las Vegas, Nevada, Stacy specializes in family law, divorce, and child custody law. You may reach Stacy at http://www.rightlawyers.com or contact her at (702) 914-0400.
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