Property division is one of the most contentious elements of a divorce proceeding. If the parties cannot settle their differences out of court, the judge hears arguments and determines how marital property will be distributed upon the final divorce decree. The state's overriding property distribution laws determine how much leeway a judge has in this decision.
Ten states (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) use the community property doctrine, which means all marital property is divided 50-50 regardless of circumstances. Each spouse also maintains their own claims on separate property. The remaining states (including Virginia) and the District of Columbia use equitable distribution, which gives a judge much more discretion to determine what is a fair division of property. The final decision does not have to be an even 50-50 split, but what is fair to both parties. Various court cases over the years have given judges some guidance as to what is considered "fair," but generally speaking, equitable distribution statutes allow judges to consider the facts and be creative. We will discuss some of these cases in a later post.
Obviously, the best way to deal with property issues is for the parties to settle, saving you the contentiousness and expense of a trial. And it would be more advangeous to have a pre-marital (pre-nuptial) agreement in place.