How Property is Divided in Family Law

Family law covers an array of issues affecting lives in many ways; one such issue is property division.

In nine states (such as California and Texas) all assets acquired during a marriage are considered community property and subject to equal division; in other states judges determine equitable division.

Beginning the process is identifying and valuating assets such as homes, cars, investments, and any other financial assets that need to be sold off. This can be challenging and may require professional services like appraisers or financial experts for assistance.


One of the first tasks a judge will complete when handling a divorce or legal separation case is to classify property as either separate or marital. Separate property includes assets acquired prior to marriage, inheritance and gifts received during marriage while marital property includes any acquired during it. If couples can’t agree on which category their assets fall into, prenuptial agreements could help resolve this dispute before their wedding takes place.

It’s essential to remember that separate property can become marital property through commingling. For instance, if one spouse owned their house prior to marriage but then added both names on the title after they married, that house could become marital if money from it were deposited into bank accounts during their marriage. Furthermore, certain assets might become marital property if both partners contributed towards increasing its value over time.


As part of a separation, divorce or death agreement, there are various factors to take into account when dividing assets and debts. One is whether an asset should be classified as separate or marital property – this depends on a variety of factors like how it was handled during marriage; for instance if before marriage you owned real estate and placed its proceeds into an account jointly owned with your partner then those funds would likely be considered marital property.

Another consideration in asset valuation is how an asset was valued. Determining the worth of any item takes into account both its sale price and replacement cost.

New York is an equitable division state, meaning a judge will consider what seems fair when dividing up property, although this doesn’t necessarily mean everything will be split equally between spouses. For example, they could award one spouse more interest in running the business/law practice due to having played an essential part.


When it comes to asset division, it is crucial that one considers future value. Retirement accounts in particular tend to increase over time due to compound interest. This process may be complex and require the assistance of family law attorneys and forensic accountants who specialize in such matters.

Property can easily become intertwined when one spouse places his or her name on separate property but uses marital funds for improvements to it. A prenuptial or postnuptial agreement can help safeguard separate properties from becoming marital assets.

If the parties cannot agree on how to value an asset, a judge will make that determination in court. They will consider what is equitable under your unique circumstances using equitable distribution; this doesn’t have to mean an equal split; New York is one of few states without such requirements for division of marital property.


Property division in family law often uses a case-by-case approach. A judge will decide what is fair in your specific circumstances – possibly keeping separate assets with one party or dividing marital property evenly among both. Prenuptial and postnuptial agreements may have an impactful influence on how assets are divided.

Valuing assets is also essential, and may require engaging the services of professionals such as real estate agents or dealers depending on the nature of the asset being evaluated. The true market value is often what it would sell for on open sale rather than its replacement cost.

As part of any asset division agreement, it’s often necessary to account for debts as well. Both spouses may be held liable for joint and individual responsibilities for family property debts during a marriage so these will need to be included as well. A court will usually take this into consideration when making their final determination on how to divide your assets.