The 50/50 myth
Most people assume a divorce splits everything down the middle. Whether that is true depends entirely on the legal regime you are in, and on which property counts as marital in the first place.
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How is property divided in a divorce?
It depends on your regime: equitable distribution, community property, or a civil-law matrimonial regime. Here is how each one splits the estate.
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What people get wrong
The short answer
The short answer
How property is divided depends on your regime. Community-property systems presumptively split marital property 50/50. Equitable-distribution systems divide it fairly, which is not always equally, using statutory factors. Civil-law systems follow the couple's matrimonial regime. Separate property (typically pre-marital, gifted, or inherited) is usually excluded.
Equitable distribution
Most US states and several common-law countries divide marital property fairly rather than equally, weighing factors like the length of the marriage, each spouse's contribution and earning capacity, and needs. The starting point is often near-equal, then adjusted.
Community property and civil-law regimes
Community-property and many civil-law systems start from a 50/50 split of property acquired during the marriage. The first real fight is usually characterization (separate vs marital), which turns on when and how an asset was acquired and whether it can be traced. The home and retirement accounts often need their own orders.
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How it works
1
List and characterize
Inventory every asset and debt, then mark each as separate, marital, or mixed, with a note on how you would trace it.
2
Value what you have
Get realistic values for the home, vehicles, retirement accounts, and any business interest. Appraisals where the numbers are contested.
3
Divide per your regime
Apply your regime's rule, and remember retirement plans usually need a separate order (a QDRO for many US plans) to divide without tax penalty. Ask HAQQ to walk your specific list.
FAQ
Is everything split 50/50?
Only in community-property regimes, and only for marital property. Equitable-distribution systems divide fairly, which can be unequal.
What counts as separate property?
Usually property owned before the marriage, or received during it by gift or inheritance. As long as it was kept separate and can be traced.
How is the house divided?
Common options are a buyout, an immediate sale and split, or a deferred sale. The right one depends on equity, affordability, and the children.
Do we need a QDRO to split a pension?
For many employer retirement plans, yes. A Qualified Domestic Relations Order divides them without tax penalty. IRAs typically transfer differently. Confirm for your plan.
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