Answers Posted By: Beverly J. Greely
How is property divided in a divorce?
A division of the estate of the parties in a marriage or divided by the Court in a manner that the Court deems “just and right, having due regard for the rights of each party and the children”.
What does the “estate of the parties” include?
The estate of the parties include all community property owned by the parties of the marriage.
What’s the difference between community property and separate property?
Separate property is all property (1) owned or acquired by a spouse before marriage, or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance. Community property is all property other than separate property, acquired by either spouse during the marriage.
When is the character of property determined?
Whether property is community or separate is determined by the time and circumstances under which it is acquired. This is called the “inception of title” rule. For instance, if a house is purchased before marriage but paid for during the marriage, the house is separate property, but the community estate might have a right of reimbursement for payments made during the marriage since income earned during the marriage is community property. The inception of title occurred prior to the marriage, so the house is separate property.
What is the Court’s starting point in deciding what property is community and what property is separate?
The Courts start with a presumption that all property possessed by the parties during the marriage or at time of divorce is community property. But don’t panic, this presumption is rebuttable. In other words the Court will start with the notion that everything that you and your spouse have in your possession during the marriage is community. If you are alleging that any part of that property is your own separate property, then you will be allowed to rebut the presumption by showing specific evidence that the property is separate. For example, if you and your spouse possess a car at the time that you file for divorce, then the Court presumes that it is a community property. In order for you to rebut that presumption, you could use as evidence a title showing the date of the purchase of the vehicle, with that date being before the date of your marriage, thus making it separate property.
If I bought a house before marriage, but made payments during the marriage, can the Court award the house to my spouse in the divorce?
Normally, no. Property which is shown to be separate property is normally awarded to that spouse only, since it is not considered a part of the community estate that is divided by the Court. The house is your separate property and is not a part of the community property that is divided in the divorce. However, as stated previously, if the house was not fully paid for prior to the date of marriage, the community estate might have a right of reimbursement.
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