How Community Property is Divided
First, the law presumes that all property is community property, and is therefore subject to division by the family court. Generally speaking, separate property is all property that is:
- Acquired prior to the date of marriage
- Received as a gift, or
- Received via inheritance
Separate property is not subject to being divided by the family court, but since all property is presumed to be community property, an experienced family law attorney must overcome this presumption by clear and convincing evidence.
Sometimes, parties will unknowingly commingle their separate property and community property. If this occurs, you must have a skilled divorce attorney who is experienced in tracing and characterizing property in order to preserve and protect your separate property. However, sometimes the property has been commingled beyond repair, and thus, all the commingled property will be determined to be community property, subject to division by the family court.
The Court will be tasked with determining a just and right division of the parties’ community property. The Court has broad discretion in making this determination. The Court is not bound to make a 50/50 division of the community property. The Court may take several factors into consideration and can, in fact, make a disproportionate division of the marital property, as long as it is not an abuse of the court’s discretion.
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The factors the court may consider include, but are not limited to:
- Disparity in the ages of the spouses (for example, a much younger spouse has more time to replace assets than an older spouse)
- The education level of the spouses
- The relative physical health of the spouses
- The size of separate estates of the spouses
- The future employability and earning capacity of the spouses
- The length of the marriage
- Any alleged fault committed by a spouse, such as adultery, domestic violence, committing fraud on the community estate, or wasting community funds, for example
Whether you were the breadwinner or you were the stay-at-home spouse, you worked hard during your marriage to build up your assets. You have played by the rules, saved for retirement, and you shouldn’t have years of hard work and accumulating assets wiped out because of a divorce. Consult with a highly skilled, experienced divorce attorney who will work hard for you to get everything you are entitled to and protect your assets.
