Division Of Property

When the time comes to divide property, the court is going to begin by categorizing the property as either community property or separate property.  Afterward, the court is going to consider a variety of factors and make what's called a "just and right" division. 

Categorizing Property

The general rule is that all property is considered community property, meaning it belongs to each spouse equally, unless and until the party claiming otherwise proves it.  If property isn't community 

property then it's separate property.  Property owned before marriage (meaning one party can prove they owned the property before marriage) is separate property.  Property acquired during marriage is community property belonging to each spouse.   

 

An important note about this rule is that it applies until the day the divorce is finalized, meaning if one spouse acquires new property the week before the divorce is finalized, it will be presumed to be community property.  It also means that if one party spends all the community property before the divorce is finalized, then neither spouse is entitled anything.  It's important to consider speaking with a divorce lawyer about how to best protect yourself and the community property to which you're entitled during a divorce. 

 

Exceptions to the rule of community property are made for gifts (even from your soon-to-be ex-spouse), inheritance, and monetary awards for personal injury. 

 

Additionally, if a party can show they acquired property during marriage using only their separate property, then the property won't be considered community property. On the other hand, if property that was clearly separate property became so intermingled with community property that it became indistinguishable, then it will be deemed community property. 

 

This general rule and its exceptions apply largely the same way to debt.

Just & Right Division

Let's start with what "just and right" doesn't mean.  It doesn't mean an even, 50/50 split, nor does it mean dividing property proportionately, based on each spouses relative contribution to the acquisition of the property. 

Certainly such notions of fairness are important when dividing the marital property, but other factors are also necessary to consider when deciding what is just and right. 

 

Examples of these additional factors include considerations about each spouses earning potential, education, skills, training, work experience, and knowledge.  If a significant difference between the spouses becomes apparent when reviewing these factors, it's important to know why the difference exists. 

 

For instance, if one spouse's earning potential is significantly reduced due to sacrifices they made so the other spouse could increase their earning potential, that may be weighed in favor of the spouse with the reduced earning potential when making the just and right division. 

Another factor that's important when considering a just and right division is each spouse's separate property.  If there's a significant difference between the spouses' separate property, such that an even split of the community property would leave one spouse at a significant disadvantage in relation to the other spouse, that may be weighed in favor of the spouse with less separate property when making the just and right division. 

Additionally, if one spouse has committed infidelity or family violence, then courts are free to award the non-offending spouse a greater share of the community property. 

When it's time to divide property and the term "just and right" starts getting used, people often start thinking in terms of math equations and balancing budgets.  Although mathematical parity can be useful and may often provide a place to start, to affect a just and right division it's necessary that the whole picture be brought into the equation. 

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