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The divorce court must divide all the parties' community property. However, the court does not have jurisdiction over a person's separate property, Therefore, the court will decide whether each item owned by the parties is community or separate, property.
Community property is all property acquired during the marriage, except gifts and inheritances, unless otherwise agreed to in a valid written agreement. All property acquired during a marriage up until the day of divorce is community property. Payments for personal injuries wrongfully caused by another is not community property, unless it is to repay for earnings lost during the marriage or for medical expenses incurred during the marriage. The law presumes that all property owned by the parties is community property, unless proven otherwise.
Separate property is property acquired before the marriage and property obtained during the marriage if it was a gift, inheritance, or received for personal injuries wrongfully caused by another, except when the personal injury recovery is to repay for earnings lost during the marriage or for medical expenses incurred during the marriage. Money received from the sale of separate property remains separate property if it can be traced to that separate property and has not become commingled with community property. Property purchased with separate property money continues to be separate property, even if the transaction occurred during the marriage. However, if separate property and community property are mixed together so that the separate property cannot be clearly traced and identified, then all the property will be deemed community property.
Income earned during the marriage from separate property, such as rent received from a separate property house, will be community property, unless otherwise agreed to in a valid written agreement. However, the increase in value of separate property during the marriage, such as appreciation of stocks or real estate, will remain the party's separate property.
The court doesn't have to divide the community property equally. The court is required to make a "fair and equitable" division. The Court considers many things, such as the respective earning capacities of the parties, separate property owned by either party, child custody, and fault in the breakup of the marriage. The court has a great deal of leeway in making the property settlement.
It is important to make sure the court divides all the community property because if it does not, the parties will own the undivided community property jointly, and either party can sue in the future to force a partition, of the undivided property. Community property that is often overlooked and not divided includes retirement benefits that may be due in the future although they are not presently being received, life insurance policies, potential lawsuits arising during the marriage, and prepaid federal income tax.
Debts created during the marriage by either party are usually community debts that both parties have to pay. The divorce court can not affect the right of creditors to attempt collection for either party. However, the court can order one party to pay particular debts. The court may order one person to pay the other's attorney’s fees as part of the division of the property or as needed for the welfare of the children. The court does not have to award attorneys’ fees and often does not.
Existing wills should be reviewed at the time the decision to divorce is made. Although divorce nullifies the portion of a will leaving property to the other spouse, this nullification occurs only when the divorce is finalized, not when the petition is filed.
With over 20 years experience David Enos understands how painful and traumatic a divorce can be. Contact our office at (806)372-7307 and schedule a free consultation to learn how we can help you throughout your divorce and related legal matters.
Information on this website is based on general principles of law. They may not apply to your situation. Nothing in this article constitutes legal advice and no reliance should be placed on the legal principles set forth in this website. This is why you should personally consult with attorney David Enos about your case.