Mississippi is the only state that has yet to extend property distribution rights to nontitleholders. Unless an asset is owned outright by one spouse, or held jointly, it is considered nonmarital property. In the rest of the country, the separation of what is his, hers, or theirs is based upon such factors as when the asset was purchased, and the economic contribution to the asset made by each party. In all but 14 states -- Alabama, Arkansas, Hawaii, Idaho, Louisiana, Michigan, Montana, Nevada, New York, Oklahoma, Texas, Utah, Virginia, and Washington -- nonmonetary contributions are figured in as well.


This is where law and practice vary most. In the nine community-property states, each marital asset is divided along lines that are deemed "equal in value" or "equitable." These are the states most likely to go 50-50. However, in four community-property states -- Arkansas, Idaho, Nevada, and Texas -- the courts may find marital misconduct, and diminish the guilty party's share of the property accordingly. In the remaining equitable-distribution states, the courts divide all of the marital property equitably. The criteria used may include the length of the marriage, the age, health, and station in life of each spouse, as well as occupation, income, and employability.


Increasingly, states are deemphasizing or ignoring "fault" in such awards, focusing instead on economic need. Awards are also more likely to be "rehabilitative" -- designed to support a spouse for the limited time it takes the recipient to become self-supporting. Many of the same factors considered in property distribution are also criteria for the award of alimony.


Wisconsin became the first state to adopt the Uniform Marital Property Act. The same controversial statute is under consideration in the legislatures of Colorado, Indiana, Michigan, and Missouri. The act embraces the concept of marriage as a partnership and would move equitable-distribution states toward a community-property approach.

Source: "Family Law in the Fifty States: An Overview," by Doris Jonas Freed and Timothy B. Walker, Family Law Quarterly, Vol. XVIII, No. 4, Winter 1985.

Published on: Mar 1, 1986