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The Role of Community Property in Divorce

November 26th, 2008 · No Comments

According to many sources, the divorce rate in America is approximately 50%. It is a staggering number, especially when you consider that many of these cases, there is often a correlated draining legal component. While the length of a divorce proceeding will vary from case to case and state-to-state, one constant nagging portion of the divorce procedure is the splitting of property. One of the most controversial property division laws occurs in community property states. States that follow these laws include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

Two important words to understand in the division of property are separate property and marital property, a.k.a community property. Separate property is property acquired by one partner before the marriage. However, community property is property acquired by either spouse during the course of the marriage.

Although there are 9 states that follow the property division system of community property, each state has different laws regarding how they handle the splitting of property during a divorce, which can greatly affect the outcome of a case. In community property states, there is a presumption that all property acquired within the marriage is jointly owned by the marriage partners. Both parties equally own all money earned during the marriage regardless of which spouse earns more income. As such, both partners are considered to have an equal equity interest in the property, the courts will divide the property equally. In California, the courts strictly follow this law, and community property is split 50/50. Some community property states may apply more flexible standards when dividing the property.

Any property acquired prior to the marriage is generally considered separate property, although a few exceptions apply. For example, if separate property and community property become co-mingled to the point where one cannot tell where one ends and the other begins, then the property is presumed community property. Yet, in general terms, the party who brought the separate property into the marriage will retain full ownership of that property, and it therefore will not be divided in the divorce.

There are also a couple categories of property that are considered separate property, even if they are acquired during the marriage. These include gifts and inheritances. Thus, if a wife inherits or is gifted property while she is married, during a divorce proceeding, the husband will not have an equal equity interest in the property. However, as mentioned before, the status of this property could change it is commingled with community property. So, if the wife and husband decide to use community property funds to remodel the home, a court may decide that the husband is allowed some equity rights in the property.

Hence, besides the exceptions, any real estate, furniture, cars, clothing, equipment, investments, and other property items acquired while the couple were legally married will be considered joint property by the courts. How the property is dividing can often be a large part of the court record, depending on how much property is owned. Information pertaining to the division of property in the court records is often not open for public view due to the sensitive financial nature, and often in high profile cases, the parties ask for the financial information to be sealed from public view. However, some basic information will likely still be viewable. To access information pertaining to courts handling divorce cases, visit CourtReference.com. Here you can find contact information, online court record search resources, court dockets, and more.

clperkins82

Tags: Arizona · California · Courtreference.com · Idaho · Louisiana · Nevada · New Mexico · Texas · Washington · Wisconsin

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