I was told that all property in a divorce was considered community property, what does that mean?

It is presumed that all property acquired by the parties during the marriage is community property. However, if a party can prove that certain property is his or her separate property, then that property will be set aside to him or her.

In a divorce what is considered separate property?

Separate property is that property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or by inheritance. It can also include monies recovered for personal injuries. Separate property cannot be divided by a court.

Do I get to keep my separate property?

Once proven to be separate, that property is confirmed as the property of the party claiming it.

OK, so how do I prove that an item of property is my separate property?

There are a variety of methods to prove that property is separate. Generally, however, a party must provide clear and convincing evidence of when and how he or she received the property. If it has changed form by being sold and the money held or reinvested, then the party must also provide clear and convincing evidence tracing the change from one form into another. Proving separate property in a divorce can be complex and should be discussed with a lawyer at Kersh Law Firm, P.C.

Does the judge divide the community property 50-50?

Not necessarily. The judge divides community property and liabilities in a “just and right” manner and this may result in the judge giving more property to one spouse.

What factors does the judge consider when making a “just and right” division of the property and liabilities?

In making a “just and right” division or split of the property, the judge may consider any important or relevant factor, which might include evidence of:

1. Fault in the break-up of the marriage
2. Differences in earning capacities and education
3. Age of the parties
4. Health of the parties
5. Any special needs of the parties
6. Separate property available to either spouse

How is the value of my property determined?

Each party is required to provide the judge with an inventory which identifies all property, assets, accounts and their value, as well as all liabilities. The inventory also lists any separate property either party is claiming. The judge decides the value of the property, based on the evidence, when there is a dispute. Determining the value of property in a divorce can be complex and should be discussed with a lawyer at Kersh Law Firm, P.C.

Is it always up to the judge to decide how to divide the property?

It depends. As discussed elsewhere, there are many ways to resolve a suit for a divorce without having the judge decide the value or division of the assets and liabilities. If the parties agree on the division of their property, at the end of the case, the judge will typically approve the parties’ agreement before granting the divorce. If there is no agreement, however, it may be necessary for the judge to make the decisions. Property division in a divorce can be complex and should be discussed with a lawyer at Kersh Law Firm, P.C.

How do I get the property that is awarded to me in a divorce?

There are many methods to get the property you are awarded. These include obtaining signed real estate documents, orders to employers to divide retirement and other benefits, orders in the divorce decree to transfer the property, documents required by banks and other financial institutions directing the division and transfer of funds and accounts, technical business documents and many, many others. 

Because there are so many types of property and so many ways to transfer property, an attorney should be consulted to discuss in detail. Property division in a divorce can be complex and should be discussed with a lawyer at Kersh Law Firm, P.C.

What happens to community property that is not divided in a divorce?

All community property should be brought to the attention of the judge and divided at the time of the divorce. Any community property not divided upon divorce remains as property owned jointly by the parties. Either party may come back to court and request the judge to divide this jointly-owned property and the judge shall divide the property in a just and right manner, taking into consideration the rights of each party and any children of the marriage.

 If an asset was concealed, then the judge has the authority to award it to the other party. If a liability was concealed, then it will likely remain with the concealing party. There are time limits on when claims can be made, subject to when the fraud was discovered, so a lawyer should be consulted. Finally, agreements among spouses regarding who gets certain liabilities do not bind creditors, who generally may sue an ex-spouse to collect unpaid debts.