Distribution of Property at Divorce

Question 1

What is the jurisdiction of divorce court to distribute property?

Answer 1

Court may:

1. divide & distribute all CP
2. At request of EITHER party, distribute JOINTLY titled SP

NOTE –> SP that is not jointly titled may be distributed only if both parties request

Question 2

In general, what is the requirement of disclosure?

Answer 2

Each party must disclose:

1. all assets and liabilities in which one or both parties has an interest, AND
2. income and expenses

Question 3

Is the requirement of disclosure continuing?

Answer 3

Yes.

Each party must immediately update disclosure whenever there are any changes

Question 4

When does the duty of disclosure end?

Answer 4

The duty of disclosure ends when a final judgment resolves all divorce related issues

Question 5

What is the general rule re: equal division requirement?

Answer 5

Unless spouses otherwise agree IN WRITING or by ORAL STIPULATION in open court, each spouse is entitled to a 1/2 interest in each community asset (in kind)

Question 6

When may the court deviate from an in-kind division?

Answer 6

Where economic circumstances warrant:
- the court may award any asset of the community estate to one party on such conditions as it deems proper to effect a SUBSTANTIALLY EQUAL DIVISION of the community estate

Example –> loss of family home would uproot minor children, or asset is intimately related to one spouse

Question 7

In general, what are the 6 circumstances where the court may grant an unequal division at divorce?

Answer 7

1. One spouse deliberately misappropriates CP
2. Liabilities exceed assets
3. One spouse has incurred educational debts
4. One spouse has incurred a tort liability
5. Separate debt has been incurred
6. One spouse receives community estate personal injury damages

Question 8

What is the rule where one spouse deliberately misappropriates CP?

Answer 8

One spouse’s deliberate misappropriation of other spouse’s interest in CP or quasi-CP may result in court award or offset against wrongdoer’s 1/2 share of the remaining property.

REASONING –> spouses have fiduciary duties to each other in control/management of CP

NOTE –> spouse having de facto control of CP btwn separation and divorce will be required to account for them.

Question 9

What is the rule where one spouse has unpaid educational debts?

Answer 9

Unpaid education debts are treated as recipient’s separate debt, and are excluded from equal division of assets and liabilities

Question 10

What is the rule where liabilities exceed assets?

Answer 10

If liabilities exceed assets, an unequal division of excess may be made, based on parties relative ability to pay

Question 11

What is the rule where one spouse has incurred a tort liability?

Answer 11

If not for the benefit of the community, will be assigned to tortfeasor spouse without offset

Question 12

What is the rule where separate debt has been incurred?

Answer 12

Separate debts are assigned to debtor spouse

Examples:

1. debts incurred before marriage
2. after separation
3. not for community’s benefit

Question 13

What is the rule re: a community estate personal injury recovery?

Answer 13

Rewarded entirely to injured spouse UNLESS interests of justice require otherwise.

IN NO EVENT –> will injured spouse receive less than 1/2

NOTE –> interests of justice include economic hardship to non-injured spouse

Question 14

What is the rule re: timing of valuation of assets and liabilities?

Answer 14

Assets and liabilities are valued as near to the time of trial as possible UNLESS:
-circumstances warrant choosing some other date AFTER separation and PRIOR TO trial

Question 15

What are the rules Re: setting aside divorce distributions?

Answer 15

[come back to - outline p 14]