Frequently Asked Questions

Reviewed by Paz Delacroix (PD), Editor-in-Chief — Family Law & Divorce Litigation Practice. Updated May 2026.

What is the difference between community property and equitable distribution?

Community property states (California, Texas, Arizona, Nevada, New Mexico, Idaho, Louisiana, Washington, and Wisconsin) presume that all property acquired during the marriage is owned equally by both spouses — 50/50 — regardless of which spouse earned or purchased it. When the marriage ends, that property is divided equally. Separate property (owned before the marriage, or received as a gift or inheritance during the marriage and kept separate) is not subject to division.

Equitable distribution states — all other states — divide marital property “equitably,” which means fairly but not necessarily equally. Courts in these states consider a range of factors: the length of the marriage, each spouse’s income and earning capacity, contributions to the marital estate (including non-financial contributions like homemaking and childcare), the standard of living established during the marriage, each spouse’s age and health, and in some states, marital fault. Typical equitable distribution outcomes range from 45/55 to 60/40 in most cases, though extreme facts can produce wider splits.

The practical difference: community property divorces are more predictable (50/50 with limited judicial discretion), while equitable distribution divorces involve more negotiation and judicial judgment, which means both more uncertainty and more opportunity to make arguments based on your specific facts.

Is my spouse entitled to half my retirement account?

The portion of any retirement account — 401(k), 403(b), pension, deferred compensation — that was accrued during the marriage is generally marital property and subject to division. The pre-marital portion (the account balance at the date of marriage) and any contributions made after the date of separation are typically treated as separate property and are not subject to division.

For employer-sponsored defined contribution plans (401(k), 403(b)) and defined benefit plans (pensions), division requires a Qualified Domestic Relations Order (QDRO) — a separate court order directed to the plan administrator that authorizes the transfer of the awarded share. Without a proper QDRO, the plan administrator cannot legally pay the non-employee spouse, and failure to obtain one in time can result in permanently losing the awarded benefit.

IRAs (traditional and Roth) do not require a QDRO but use a specific procedure called a transfer incident to divorce. The transfer must be handled properly to avoid triggering taxes and early withdrawal penalties on the receiving spouse. The key distinction: the transfer must go directly from IRA to IRA; if the account holder receives the funds first and then transfers them, the IRS treats it as a taxable distribution.

Does fault (adultery, etc.) affect the settlement?

In most states today, fault has little or no effect on property division. The nationwide shift toward no-fault divorce — where irreconcilable differences is a sufficient ground for divorce without proof of misconduct — has been accompanied by a general move away from letting marital fault drive financial outcomes. Courts in most equitable distribution states will not adjust the property split based on adultery, emotional cruelty, or other grounds.

There are exceptions. Some states (South Carolina, North Carolina, Virginia, and others) permit fault to be considered in spousal support determinations — in some cases, an adulterous spouse may be barred from receiving alimony. A smaller number of states allow fault to modestly affect property division. If you are in a state that retains fault grounds for divorce, their effect on financial outcomes should be discussed with a family law attorney familiar with local judicial practice, because the statutory language and how judges apply it can differ significantly from state to state and county to county.

Dissipation of marital assets — one spouse spending marital money on an affair partner, gambling, or other non-marital purposes — is treated differently from fault divorce grounds. Courts in most states can and do credit the innocent spouse for their share of dissipated assets, which effectively functions as a fault-based financial adjustment even in nominally no-fault states.

What is a QDRO?

A Qualified Domestic Relations Order is a specialized court order that directs a retirement plan administrator to pay a portion of one spouse’s retirement benefits to the other spouse (the "alternate payee") as part of a divorce settlement. It is required for dividing any employer-sponsored retirement plan covered by ERISA — 401(k) plans, 403(b) plans, profit-sharing plans, and defined benefit pension plans.

A QDRO must satisfy both the requirements of ERISA and the specific plan’s own rules. Plans are not required to accept a QDRO that does not meet their requirements, and many plans have preapproval procedures — you can submit a draft QDRO to the plan for review before the divorce is finalized to confirm it will be accepted. This preapproval step is strongly recommended; a QDRO that fails plan-specific requirements after the divorce is finalized is difficult and expensive to correct.

For defined benefit pension plans, the QDRO must also specify how the benefit will be divided — as a separate interest (the alternate payee gets their own benefit stream independent of when the employee spouse retires) or as a shared payment (the alternate payee receives their share only when the employee spouse begins drawing benefits). These elections have significant financial consequences and should be made with professional guidance.

Timing matters: QDROs should be completed and submitted to the plan administrator before the divorce is finalized if possible, or immediately after. Delays create risk — the employee spouse could die, the plan could change, or the employee could begin drawing benefits in a way that reduces what the alternate payee receives.

How long does spousal support last?

Spousal support duration varies significantly by state, the length of the marriage, and the income and employability of the supported spouse. There is no single national standard; courts in most states have broad discretion to tailor duration to the specific circumstances of the case.

Short marriages (under five years): courts rarely award alimony, or award it for a very short rehabilitative period (six months to one year) to help the lower-earning spouse adjust. The rationale is that the parties have not had time to develop a significant level of financial interdependence.

Medium marriages (five to fifteen years): rehabilitative alimony is the norm — support for long enough to allow the lower-earning spouse to retrain, complete education, re-enter the workforce, and reach self-sufficiency. The common judicial benchmark is roughly half the length of the marriage, though this varies by state and judge. A ten-year marriage might produce four to six years of support in a typical case.

Long marriages (fifteen-plus years): significant income disparity combined with a long marriage is the most reliable predictor of long-term or permanent alimony. Many states allow indefinite alimony for long marriages where the supported spouse cannot realistically become self-supporting — due to age, health, years out of the workforce, or caregiving obligations. That said, modern family law disfavors permanent alimony even in long marriages, and many states have reformed their statutes to require a substantial showing before indefinite support is awarded.

Can I keep the house?

Yes, in many cases — but it requires satisfying several conditions. First, you must be able to buy out your spouse’s equity in the home. If the home is worth $500,000 with a $200,000 mortgage, the equity is $300,000. In a 50/50 community property state, you would need to compensate your spouse for their $150,000 share, either with cash, by agreeing to receive a smaller share of other marital assets, or through a combination of both.

Second, you must be able to refinance the mortgage in your name alone and qualify for the resulting loan. This is often the binding constraint: the court can award you the house, but it cannot compel a lender to issue you a mortgage. If your income and credit do not support solo qualification, keeping the house may not be financially feasible even if you could satisfy the equity buyout.

Third, consider whether keeping the house is actually the right financial decision. A large, illiquid asset with ongoing carrying costs (mortgage, taxes, insurance, maintenance) may be worth less to you in practical terms than a more liquid equivalent share of marital assets. Many financial advisors recommend against trading liquid assets for illiquid ones — particularly the marital home — in divorce settlements without a careful analysis of long-term carrying costs and the opportunity cost of the tied-up equity. The emotional attachment to the family home is real, but it can produce financially suboptimal decisions.

If neither spouse can keep the house, the typical outcome is a sale with the net proceeds divided according to the applicable property division regime.

Return to the calculator, see how asset division works, or read the spousal support guide.