Community Property

This section is sponsored by Nancy W. Dahan The Law Offices of Brown & Dahan 38 Corporate Park, Irvine, California 92606 (949) 724-8857 Email: nancy@women911.com Nancy W. Dahan specializes in family law issues in Orange County. She has been a practicing family law attorney for twelve years and represents men and women who seek reasonable solutions to the problems they face going through a divorce proceeding. Mrs. Dahan has worked in Los Angeles and Orange County family law courts. In the event that Nancy's office is too far from your location, she will refer you to another family law attorney in your area.

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Dividing Assets And Obligations In A Divorce
How will the money and property be divided? The method for dividing property upon divorce is determined by each state's laws, and there are many variations in these laws from state to state. However, in general every state has provided some means to promote the equitable division of property after divorce. For example, in some states, marriage gives you ownership rights in your spouse's property, and gives your spouse ownership rights in your property, regardless of when or how the property was obtained. In some states, the court can set aside marital property for the support of any children. Some states authorize courts to consider marital misconduct in dividing the marital property. Some states give courts the authority to distribute property upon a decree of annulment or legal separation or even when a divorce is denied. While some states rely totally on the courts to determine relevant factors for dividing the marital estate, other states have laws that list specifically factors the courts should consider in order to promote a just and equitable result. Some factors that state courts commonly consider in determining the division of property are: * source of the property, * hardship, * disparity in income, * the custodial parent's expenses, * contributions of each spouse to the marriage, * physical handicaps or disabilities, * structure of the property (i.e. is it a family farm?), and * marital fault. While the specific methods for dividing marital property vary from state to state, there are two broad categories: community property states and common law property states. Community property states In a community property state each spouse has the right to an undivided one-half interest in all marital property as a result of his or her marital status. It does not matter which spouse holds actual title to the property. Rather, the court considers the property earned during the course of the marriage as owned in common by husband and wife with each spouse entitled to an equal one-half share. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas and Washington are community property states. Common law property states All states except the eight community property states have adopted the common law system of property distribution. In a common law property state, at least in theory, each spouse will keep any property that is in his or her name and divide any property that is held jointly. Many common law states, however, authorize courts to divide property according to what is equitable or just. Some state statutes require the court to distinguish the spouses' "marital property" from property that is separate or individually owned. In those states the division of property will be affected by that state's definition of "marital property." * Marital property is generally defined by states as the property acquired by either spouse during the course of the marriage, with certain exceptions. Some exceptions commonly found in state statutes are: property acquired by gift, devise or inheritance; property excluded from the marital estate by prior agreement and property acquired after a valid legal separation. * Separate property consists of any property that does not fit the definition of marital property. By default such property is considered separately from the marital estate. Allocation of assets Once you have determined the approach your state takes to property division, there are four issues that must be addressed. First, you must identify all assets owned by you and your spouse. Second, you need to classify these assets as marital or nonmarital. In so doing, you must determine if the marital or nonmarital estate should be reimbursed for any efforts of a spouse or contributions made in acquisition of the asset. Third, the value of the assets must be determined. Finally, you must establish a possible plan for the division of the assets in accordance with the laws of your state. Overall, most states consider separately the division of the assets and liabilities from the grounds for the divorce. Therefore, the court is not attempting to punish your spouse for inappropriate marital behavior when it rules on assets. At the same time, several states consider economic misconduct in distributing assets. This economic misconduct is often known as dissipation of assets. The spouse who misappropriated or dissipated funds will be penalized for so doing in the final divorce decree. Finally, if you and your spouse entered into a prenuptial agreement, also known as an antenuptial agreement, this agreement may control the distribution of some or all of your assets upon the dissolution of your marriage. This agreement may also address the issue of maintenance/spousal support and control most of the issues in your case. If you entered into such an agreement, you must review the agreement as soon as possible. You may also want to discuss the effect of the written agreement with your attorney.

Note: This information is not to be considered legal advice to create an attorney-client relationship. Laws and practices vary from state to state. Taking legal information out of context generally has negative consequences. If you have questions relating to your particular matter, you should contact an attorney in your state for advice.