A divorcing couple will need to divide assets during their divorce proceedings, and it’s important to know what counts as “property” in these cases. Most courts refer to two types of “property” in divorce cases: “real property” and “personal property.” Real property generally only applies to real estate the couple owned. “Personal property” refers to all other possessions, such as cars, jewelry, artwork, furniture, and pets. It’s common for divorcing spouses to disagree on who gets what in a divorce, and the court uses various metrics to make determinations concerning a divorcing couple’s property.
Community Estate vs. Separate Property
The court generally determines ownership rights in a divorce case based on when the couple acquired a particular asset or piece of property. Any property the couple purchased together or obtained during their marriage would typically count as community estate. For example, John and Stacy get married and buy a house together. In this case, the house would fall under community estate. If John owned a car before the marriage and still owns the car during the divorce, he would likely retain ownership of the car as separate property since he owned it before the marriage began. If the couple purchased a new vehicle together, the court may allow Stacy to keep it under the condition that she repays John for his share of the vehicle’s value.
Items of community estate property like bank accounts are easy to divide, and the couple can do so on their own with very little difficulty. Some property that falls under community estate will be impossible to divide, and the divorcing couple will need to negotiate ownership. One spouse may buy out half the value of a piece of property and allow the other spouse to keep it in exchange. The couple may also decide to sell the property in question and divide the money equally.
In the case of a piece of real property such as a marital home, the court will generally rule in favor of the spouse retaining custody of the couple’s children staying in the marital home with the children while the other spouse moves out. However, if the couple does not have children, then the couple will sell the house and split the proceeds or one will buy out the other’s share.
Preparing for Property Division in Divorce
If you are unsure whether a piece of property counts as community estate or separate property, it’s best to consult with an experienced divorce attorney. You will need proof that your ownership of a piece of property existed before the marriage, or that you used personal resources to obtain it that were completely separate from resources you shared with your former spouse. Receipts, deeds, titles, and photographic evidence may all come into play when it comes to proving ownership of a piece of separate property.
It’s also vital to remember that debts function the same way in divorce cases. If you and your spouse accrued debt together during your marriage, you should expect to carry your share of that debt after the divorce. The court uses a similar investigative process for determining each spouse’s debts and which debts fall under community estate. It’s essential for divorcing spouses to disclose all of their debts and assets during divorce proceedings.
The right divorce attorney can make a tremendous difference in the outcome of any divorce case. A good attorney will help a client gather whatever evidence and documentation are necessary for proving ownership of a piece of separate property and will ensure the client receives fair compensation for divided property. If you are unsure whether a piece of property falls under community estate or separate property, a divorce attorney can advise you as to what to expect and can refer you to professional resources for strengthening your position in divorce negotiations.
