 PROPERTY
QUESTIONS AND ANSWERS
- 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?
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.
- Where will the Court start 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 wasn't fully paid for
prior to the date of marriage, the community estate might have a
right of reimbursement for payments made during the marriage since
income earned during the marriage is community property.
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