Property Division

Question 1

General 3 Main Approaches to Divide Property

Answer 1

(1) Community property
- All property acquired during marriage is owned 1/2 by each spouse and property owned before marriage is separate

(2) Equitable division of ALL property owned by either spouse
(3) Equitable division of MARITAL property. Each spouse takes his separate property and the property acquired during marriage is divided equitably

In any case, PROPERTY DISTRIBUTION decrees are NOT MODIFIABLE

Question 2

2-Step Process in PROPERTY Division

Answer 2

(1) CLASSIFICATION
- Determine what is marital property and what is separate property

(2) DIVISION
- make an EQUITABLE division of marital estate no matter how the property is titled
- Equitable does NOT necessarily mean equal = COURTS HAVE DISCRETION

Question 3

Separate Property

Answer 3

All real and person property owned by a spouse BEFORE MARRIAGE, including assets held in individual retirement accounts

Inheritance

Income from and appreciation of separate property (but see special issues in property division below)

Personal injury victim

After an order of legal separation

Question 4

Marital Property

Answer 4

All property acquired by either or both spouses DURING MARRIAGE, up to the final divorce decree

Includes value of vested and unvested pension etc.

Works comp. etc.

Question 5

Special Issues in Classification of Property

Answer 5

(1) Commingling (inextricably intertwined)
(2) Transmutation of separate property (intent)
(3) Improvement of separate property (marital funds or the efforts of the non-owning spouse, most will grant the marital estate or non-owning spouse reimbursement for the value added)
(4) Property acquired before marriage BUT paid after marriage (courts split)
(5) Pensions considered to be marital property
(6) Professional License or Degree (NOT considered to be marital property)
(7) Tax Consequences (Property division is NOT taxable event BUT alimony is)

Question 6

Equitable Division

Answer 6

Once the court IDs and values the marital property, the court will make an EQUITABLE division NOT necessarily EQUAL
-REMEMBER, the court’s division of the property is NOT subject to modification ONCE the divorce is FINAL

Factors to consider