Community Vs. Common Law Property

If your marriage has not worked out and you are considering divorce, you will need to negotiate the division of assets and debts as part of the process. In New York, the property is divided based on the common law property standard, which is the standard used in most states, and which is different from the community property standard used by 9 states.

Marital and separate property

In each marriage, there are two types of property that are considered during the division of property. The first is marital property, which is generally the property acquired by the couple during the marriage and used for both their benefits. The second is separate property. This includes:

• Property acquired by each spouse before marriage
• Property acquired by each spouse after a legal separation
• Individual gifts and inheritances received by each spouse during the marriage
• Additional property that has been established as separate through a formal agreement such as a prenup or postnup

How is property divided under common law?

Under common law, marital property is divided in a manner that is considered fair, but not necessarily equal. Common law assumes that property bought during the marriage but only under one spouse’s name remains the property of that spouse. During the divorce process, these assets and the marital debt acquired by the spouses are divided based on a variety of factors, including each spouse’s investment in the marriage, if the court deems the division fair to both spouses.

How is community property different from common law property?

In community property states, marital assets are considered the property of both spouses. Therefore, marital assets and debts are divided equally between the spouses during divorce.

Understanding how the property division laws work in your state is important for your divorce. It will also help you financially prepare for life after divorce.