When a couple gets divorced, how is their property divided?
If the spouses can come to a fair agreement on their own, a judge will usually approve it after a short hearing. In a relatively small number of cases where the spouses cannot come to an agreement, the court will have to split the property. State law will establish what factors the judge will consider when dividing property.
As a starting point, many states allow parties to keep their nonmarital or separate property. Nonmarital property includes property that a spouse brought into the marriage, kept in his or her own name during the marriage and did not commingle with marital property (commingling property would occur, for example, if the property was put in the same bank account as marital property). For example, if you owned a home before you got married and you never changed the title to include your spouse and did not put marital money into the house for renovation and upkeep, the house will likely be considered nonmarital property.
Nonmarital property also includes inheritances received and kept separate during the marriage. It also may include gifts to just one spouse during the marriage. Some courts may divide nonmarital property during a divorce, but its status as nonmarital property will play some role in determining how it is divided.
After dividing separate property, the court then turns to the rest, called marital or community property. Marital or community property generally includes property and income acquired during the marriage. Wages earned during the marriage usually would be considered marital property, as would a home or furniture purchased during the marriage with marital earnings or assets.