The Difference Between Community Property and Equitable Division

Community property and equitable division are two popular terms you will come across during your divorce settlement. Primarily, they are classifications for property owned by couples and define how they are shared during a divorce settlement. Arizona, Louisiana, Nevada, California, Washington, New Mexico, Texas, Wisconsin and Idaho are the only community property states. This means the court will share assets using community property schemes. All the other states use equitable division to settle divorce cases that fail to reach an agreement outside the court. But what’s the difference?

Community Property

In this scheme, all property owned by the couple is shared equally (50/50). Property is also classified as marital property or separate property, where marital property covers all assets owned by one or both spouses when they were under marriage. On the other hand, separate property denotes assets owned before marriage or after divorce/separation. It also includes inheritance and gifts. Most community property states share marital property equally between the two spouses. Separate property will generally remain unaffected. However, each state has unique modifications, which is why you need experienced divorce attorneys to help you navigate the process.

Equitable Division

In this scheme, most assets are still considered marital property. However, the sharing isn’t necessarily 50/50. The court may also request a spouse to use separate property for the settlement of the divorce. It is important to note that equitable division seldom refers to physical asset division. In most cases, the court will award a percentage of the property’s value. This can be anything from physical assets to debts and property equity, as long as it amounts to the percentage determined for a fair settlement.

Exceptions and Penalties

Each divorce case is different and states modify schemes to ensure a fair settlement for both spouses. You can also be penalized for fraudulent practices and attempts, such as hiding assets during the divorce. If you are found guilty, states, such as California, can award up to 100% of the property’s value to your partner as punishment. Most states will certainly award a percentage of the property to your partner. Settlement schemes aren’t rigid. For instance, you can find modified community property laws that accommodate transferring some assets to a community property trust. Experienced divorce attorneys know the state’s property laws and where they apply.

Which Is the Most Common in Florida?

Like most states, Florida is an equitable division state. However, the state considers marital property equally (50/50) owned, except for special cases outlined in Florida Statutes. Judges consider various factors when deciding divorces. Some include:

  • The contributions of each spouse to the marriage and as a homemaker.
  • Length of marriage and any interruption to the education or career of a spouse.
  • The contributions of one spouse to another’s career or education.
  • Intentional waste of physical assets.

In Florida, barring commingling of assets, pre-marital assets are not divided. This includes all gifts, inheritances and investments that aren’t intermingled with marital assets. Assets bought or exchanged using separate property are also safe. Only marital property is shared. This includes income, bank savings, real estate, automobiles, IRAs, antiques and property acquired after the marriage of the parties.

However, a prenuptial agreement can override all of this.

Trusted Family and Divorce Attorney in Florida

Are you looking for reliable divorce lawyers to help you with the settlement? Florida courts encourage spouses to reach an agreement outside courts. However, this isn’t always possible. Bergman Family Law has several years of experience in divorce, alimony, domestic violence, child support, prenups, and other family law aspects. Our goal is to help you get justice and fair settlement in the event of a divorce. I am located in the greater Miami area in Florida and have helped many families settle various cases within our jurisdiction. Contact me today for more information concerning divorce settlement in FL, including hiring our family law attorneys.


Does Cheating Affect Alimony?

In Florida, cheating actions do not affect the alimony order unless they cause the non-cheating spouse to suffer financially. The court considers various factors before issuing alimony orders, notably finances.

Can I Modify Alimony Post Judgment?

Yes. You don’t have to settle for the alimony order issued in court. Bergman Family Law can help you with post-judgment modifications to improve your deal.

Do I Need A Lawyer to Settle Out of Court?

Yes. It is recommendable to hire an experienced divorce attorney to help you navigate the process and represent your interests during negotiations. Since your spouse is probably going to get a lawyer for the divorce, you are safer with a trusted attorney who understands what divorce settlements entail. Litigation is expensive and results are not guaranteed. Settling out of court can both reduce costs and time while ensuring an acceptable result.

How Much Maintenance Is My Spouse Entitled To?

The first inquiry the Court will make is the paying spouses ability to pay and the receiving spouses need for alimony. After analyzing each parties respective financial positions. Other crucial factors for consideration are: the parties’ living standards, income, length of marriage and contributions made to the same and special needs, such as disability. Length of marriage plays a vital role. A short term marriage is considered any marriage that is less than 7 years. A moderate term marriage is a marriage exceeding 7 years but less than 17 and a long term marriage is any marriage which exceeds 17 years.