Here’s what you need to know about divorce if you live in one of these states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin (and Alaska is opt-in).
Why would you be advised not to buy another home before your divorce is finalized? Or to hurry up and have that expensive medical procedure done before you file for divorce? These are weird questions to ask, but this could dramatically change your financial future after divorce.
This story, published Rose Sweet’s book, Rebuilding after Divorce: Making Your House a Home Again, illustrates these questions:
My husband served me with divorce…My attorney told me that I could not leave the house. I had gotten to a place and point after living in our home for two months (following the separation) that I had become literally “a wreck.” My husband would scream at me every day to “GET OUT, GET OUT,” and I was trapped by my attorney’s instructions.
My husband had moved out of our bedroom and into the guest room. However, he would invade my room at all hours of the day and night. Walking through, doing this and that. All very calculated. I had not just started shaking—my whole body would convulse. I could not buy another home as it would then become communal property. I was completely boxed in…Some dear friends called me and told me to go out, find a house. They would buy it, and I could rent it from them! …it was small, however, a good size for a now-single woman with two kitty cats, and it fits all of my needs. We had a thirty-day escrow, which was unheard of then.
I had to keep things “quiet” about moving. I was “found out” the day before. My girlfriends came in and helped me pack my things. The mover came in the morning. I remember that first night. I putted around this little house and was so delighted, so relieved! I climbed into bed that night with my two cats and NO ONE walked through the room in the middle of the night! I had my little house all to myself. It was so freeing!
There are two important things I notice in this story. One: her attorney advised her not to buy another house. Two: Keep the move quiet. Why? Because she lived in one of these states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin (and Alaska is opt-in) where the states use Community Property as the guideline for property settlement in divorce.
Because she lived in one of these nine “communal property” states, it affected the choices she made during the divorce process. Her attorney, an expert in the communal property law of her state, could advise her of how to handle the situation, which may be different from how my attorney advised me in my divorce because I did not live in a communal property state.
In a Community Property State, both husband and wife are typically considered equal owners of all marital property. Whatever you earn or acquire during the marriage is co-owned by both parties, regardless of who earned it or whose name is on the title. No matter what, you spilt marital property up 50-50 during a divorce. For this lady in the story, the attorney was saying to her: if you buy a house before your divorce is finalized, your soon-to-be ex-husband would own half of it.
I knew a lady who was married and had damaged her shoulder during her college sport days. She was told by doctors that she would need to have surgery, eventually. It wasn’t urgent, but it was something that needed to be done for her long term health. When her husband started talking about divorce, so she hurried up and had the surgery.
Why did she incur joint debt prior to the divorce being finalized?
In most Community Property States, both spouses are equally responsible for the repayment of debt acquired during the marriage, even if only one spouse enjoyed the benefit. In this case, it benefited the wife to have her husband be responsible for half of that debt of the surgery, even though it wasn’t really a “marital” decision. Also note that because they will get separate insurance coverage after the divorce, it was another reason for her to hurry up and have the surgery while she still had affordable coverage. This isn’t advisable for everyone to do in divorce, but in her case she was able to get the surgery done while still being covered by affordable insurance and the debt was taken into consideration when splitting up the marital assets..
How are these states different from the rest? The rest of the states are Equitable Distribution States.
FamilyLaw.com defines equitable distribution as the distribution of property and debt obligations used by courts in most states when dividing marital property during divorce proceedings. Equitable distribution does not mean “equal” division – it means “fair” division. Instead of a strict fifty-fifty split in which each spouse receives exactly one-half of the property acquired during the marriage, the doctrine of equitable distribution is used to look at the future financial situation of each spouse after the termination of the marriage. While equitable distribution is a flexible system, it is difficult to predict the actual outcome of distribution, because some of the factors that courts take into consideration when dividing property during equitable distribution are subjective.
Where the goal is not a 50-50 split. The goal is a fair (equitable) distribution of family property. Where, if your name appears on an asset, you are considered the owner. BUT your spouse has the legal right to claim a fair and equitable portion of those assets in a divorce.
The division of assets in Equitable Distribution states may result in a 50-50 split of marital property, or it may not.
How would a judge determine what a fair and equitable division of assets looks like? They consider factors like: the length of the marriage, the age and health of the parties, the income and future earning capacity of parties, the standard of living established during the marriage, the value of homemaking and childcare provided during the marriage, and the value of the investment one party made to help with the education.
I filed for divorce in South Dakota, an Equitable Distribution state. My husband’s name, and his name alone, was on almost everyone of our assets. I could have filed for divorce in Arizona, a Community Property state, where the division of assets could have been better for me. Shucks.
Talk with an attorney to see what your options are. You may have more or less options than you think! Knowledge is power.
Do your research before you file. But if you have already filed, it’s not too late. There are still things you can do to protect yourself and your assets.