Practice Areas

Division of Property

Property Division Who Decides

In divorce, property division can be almost as angst-provoking as deciding who gets custody of the children. And like custody issues, couples can either work it out among themselves and their lawyers, or take their chances with the judge.
Property that is considered a product of the marriage (and, therefore, subject to be a division between a divorcing couple) includes wages earned during the marriage, real property (homes and land) bought during the marriage, personal items such as furniture and cars, and pensions and retirement accounts accrued during the marriage.


Community Property


There are nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) that consider property acquired during a marriage to be community property. In these states community property is owned equally by the
divorcing parties.


In community property states, "lawmakers believe property should be divided equally because they view marriage as a joint undertaking in which both spouses are presumed to contribute equally to the acquisition and preservation of property," according to the American Bar Association, a professional organization for attorneys.


Equitable Distribution


Nearly all the other states have property division laws that use equitable distribution as a method to divvy up the property. Equitable distribution attempts to achieve fairness, which may or may not result in a 50-50 split. "The division of property could be 50-50, 60-40, 70-30 or even all for one spouse and nothing for the other," the ABA writes in a book about divorce.
In coming up with a solution judges will deem fair, they consider many factors, including:

  • The length of the marriage
  • The work history and job prospects of both spouses
  • The physical and mental health of both spouses
  • Who earned the property (for example, if a business was run by one of the spouses)

The Nuts and Bolts of Divorce Property Division


Judges will usually approve a property division agreement if the couple settles these issues and reaches an agreement on their own through settlement with their attorneys. If divorcing spouses cannot agree, they should consult with their attorneys as to whether it makes any financial sense - based on the value of the property in question - to pay for an expensive trial. This is called a cost-benefit analysis.


To figure out what to divide, divorcing spouses need to take an inventory of their property. It is very important to list all property and not to leave out any assets. Besides the usual places - bank accounts, real estate, jewelry - property can be found in pensions, IRAs, stocks and bonds, certificates of deposit, money market account and safety deposit boxes.


If spouses cannot agree as to the value of various properties, they should hire a professional appraiser to assist them in determining value. Once the spouses are settled on the property division, the attorneys can write up the property settlement agreement and present it to the court for approval.


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8500 Menaul NE, Suite B-550
Albuquerque, NM 87112
t: (505) 243-0900
f: (505) 243-5785
Email: channa@nmdivorce.com

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