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Maybe not.  Many spouses find out late in the game that they may not get an equal share of their jointly owned property which usually includes their house.  Why?  The two biggest reasons include the following:  it didn't belong to both spouses and half is not always fair.

There are several things to remember when considering how your assets will be divided.  While DMK provides this information for your reference it should be used to give you, the legal consumer, an opportunity to understand general legal information so that you may have more knowledgeable discussion with your legal, financial and tax advisors instead of in place of such advisors.  Laws vary in every state and change frequently.  Speak with an attorney in the state where you plan to seek your divorce for legal advice specific to your situation and state divorce laws.


The answer to the question regarding joint marital property, will depend on the residing state where you are seeking your divorce.  Know that you and your spouse can generally negotiate the terms of your settlement, to include distribution of debts and assets (such as real estate owned), as you like.  The laws of your state may provide a basis for what you each deem is fair based on your individual chances of a court ruling. 

However, your state's property distribution laws affect your Final Judgement of Divorce more specifically when the court decides the outcome.  Also, separate property can affect the judge's ruling, but it is not considered in the division of marital property regardless if it was the couple's residence.

Below, find information to help you better understand separate property, as well as the differences between community property states and equitable distribution states.

Separate Property

A home that was owned prior to the marriage, inherited, given to only one spouse before or during marriage, acquired after permanent separation or purchased with premarital income or funds acquired from a separately owned premarital home/asset, generally remains as separate property.  The state's property distribution laws will not affect the asset.  It will continue to be owned by the originating spouse.

Community Property States

If it is a community property state all property acquired during the marriage is considered community property (jointly owned).  It does not include gifts or property received during the marriage deemed only for one spouse and does not include separate money or assets that were owned individually by either spouse before the marriage. 

If separate money was used to purchase the home, then the spouse who contributed that money may be entitled to reimbursement.  If a spouse used community property money for the home that was owned as separate property, the other spouse may also be entitled to reimbursement.  In divorce, community property is divided equally (in half) between the two spouses. 

However, in most community property states a judge has the authority to divide community assets such as a marital home equitably.  This means that if the court deems one spouse would be given an unfair distribution with 50%, then a fair division would be established that may result in one spouse receiving more or less than a 50% split.  In some community property states,  if the court establishes one spouse is at fault in ending the marriage, the court has the authority to award that spouse less than 50%.  (Equitable distribution exceptions do not apply to California.)

Equitable Distribution States

The majority of the states are equitable distribution states and follow the guidelines of equitable distribution which means all of the property that was acquired during marriage (marital property) will be divided fairly between the two spouses.  This means the court has the discretion to determine an equitable division between the two spouses whereas one spouse may get more than 50% of the marital home's value (along with other marital property) while the other get's less.  Equitable division of assets like a home is not always even (50/50) distribution, instead it's considered fair distribution.  In some equitable distribution states if there is a fault divorce obtained by one spouse, the spouse who is considered "at fault" may get a lessor portion of marital assets such as the marital home.

-OurDMK.com



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