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FAQ: Divorce and Property
What is the Marital or Community Property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions. The states of the United States that recognize community property are primarily in the West; it was inherited from Mexico's ganancial community system, which itself was inherited from Spanish law (a Roman-derived civil law system) and ultimately from the Visigoths. Even Louisiana, in a rare departure from the Napoleonic Code, was forced to adopt the ganancial community system while under Mexican rule (renamed "community of acquests and gains"), thus ousting the traditional French community of movables and acquests.
In a community property jurisdiction, most property acquired during the marriage (except for gifts or inheritances) is owned jointly by both spouses and is divided upon divorce, annulmentor death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion for a particular piece of property. The community property system is usually justified by the idea that such joint ownership recognizes the theoretically equal contributions of both spouses to the creation and operation of thefamily unit.
Division of community property may take place by item, by splitting all items or by value. In some jurisdictions, such as California, a 50/50 division of community property is strictly mandated by statute,
meaning that the focus then shifts to whether particular items are to be classified as community or separate property. In other jurisdictions, such as Texas, a divorce court may decree an "equitable distribution" of community property, which may result in an unequal division of such. In non-community property states property may be divided byequitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property (i.e., not community property). See division of property. Division of community debts may not be the same as division of community property. For example, in California, community property is required to be divided "equally" while community debt is required to be divided "equitably".
Property that is owned by one spouse before the marriage is the separate property of that spouse, unless the property is "transmuted" into community property. The rules for this vary from jurisdiction to jurisdiction.
How to List Marital or Community Property
Real Property
- Marital homestead
- Vacation home
- Business property
- Rental property
- Undeveloped land
Personal Property
- Home furnishings
- Rugs
- Antiques
- Artwork
- China
- Crystal
- Coin collections
- Stamp collections
- Collectibles
- Guns
- Computers
- Home office equipment
- Jewelry
- Clothing
- Furs
- Motor vehicles
- Boats
- Campers
- Recreational
- ATVs
- Financial Assets
- Cash on hand Checking accounts
- Savings accounts
- Christmas club accounts
- Educational accounts
- Retirement accounts
- Pensions
- Profit sharing
- IRAsStocks and bonds
- Mutual funds
- Certificates of deposit
- Annuities
- Life insurance policy cash value
- Trusts
Business Assets
- Sole proprietorships
- Partnerships Professional practice
- Professional degree Others
How Inheritance Becomes Community Property
Inherited real estate can also easily become owned by both spouses. If any money owned by both spouses is used for the upkeep or improvement of the property, it can be considered community property and thus must be divided in the event of a divorce.
It can be difficult to keep inheritance money or property from becoming community property and therefore subject to division in a divorce. For example, if your spouse helped pay the taxes on your inheritance (with a joint bank account, for example), the inheritance becomes community property. Another way that inheritance money can become jointly owned is if you allow your spouse ready access to the funds - for example, by letting your spouse use it to purchase a car, or to repair or build property.
Inheritance Laws
Each spouse owns one-half of the couple's property in community property states, and, therefore, when a husband or wife dies only one-half of the marital property is inheritable since the surviving spouse owns in his or her own right one-half of the marital property.
How woks the Inheritance and Divorce
Do they go together?
Dividing property is one of the most difficult parts of a divorce for many couples. Inheritance begins as the sole property of only one spouse.But indeed there are ways that it can become the property of both spouses. You can understand how this is possible, but first is necessary to understand the two types of property in a marriage: Community property is property which is owned jointly, by the marriage rather than by the individual. This applies to property purchased by joint funds. Nine states in the Western United States have provisions about community property. In many of these jurisdictions, including California, a 50-50 split of the community property is mandated by law. Separate property is property owned individually by the members of the marriage. This often includes property that was owned prior to the marriage, or property gifted to one of the spouses. Inheritance is separate property, although there are many actions that can transmute it to community property.
Alexander Racini & Associates
International Law Firm
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