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Questions about Community Property Laws

Community property consists of items acquired during a marriage. Gifts and inheritances acquired individually by either spouse during a marriage are usually not community property but are considered separate property. Different states have different community property laws and there are some states that do not recognize community property at all. These differences in legal provisions about community property can be difficult to understand and result in legal questions. Below are the most common questions about community property, answered by Lawyers on JustAnswer.

Does the division of community property in a divorce stop after the filing date or on the date of the final divorce?

Generally, if a couple doesn’t have a separation agreement, anything acquired during the marriage, except a gift or inheritance received individually by either spouse is considered community property. Since it is acquisitions ‘during a marriage’ it usually stays in force till the marriage is legal — in other words, till the divorce is finalized. However, if new debt is obtained by just one spouse, it is possible for the court to award that debt to the spouse who incurred it.

Is a gift considered community property or separate property?

During a marriage, people obtain many things. However, there are exceptions to what is considered community or marital property. A gift or an inheritance from an estate, received individually by one of the parties is usually considered separate property. Also, if the couple has a prenuptial agreement, then anything defined as separate in the prenuptial agreement is considered separate property. Everything else is usually considered marital and community property.

Does community property apply to a spouse who has been incarcerated?

In some situations, a spouse may be absent from the marriage for a period of time. During that time, any money earned is still considered community property since the marriage would still be legally binding. The exception to this could be if the couple has opted voluntarily for legal separation. In the event that you choose to remain married but do not want your spouse to have any claim on your earnings, you can both sign a postnuptial agreement stating that your earnings will be considered your separate earnings and not a part of community property.

How does someone deal with a home acquired as community property, if one of the persons wants to keep the home?

When couples divorce, it’s a common occurrence for one of the spouses to retain and continue to live in the family home that was acquired during the marriage as community property. In such situations, the easiest way out is for the couple to arrive at a mutual agreement with regard to the house. If the house is under mortgage, the spouse who wants to retain the home may have to obtain a separate refinance in order to remove the other party from the house title and loan mortgage. This is done in order to pay the other spouse their share of community property from the home. If refinancing isn’t an option, the home is usually put up for sale and the equity will be divided between both spouses. Usually, the spouse who wishes to keep the home is given about 60 days in which to refinance. This allows the spouse who wishes to keep the home more time to secure a new loan. Failing this, the spouse who doesn’t want the home can request that the property be sold.

Another way for the spouse to retain the home is to release other marital property such as alimony or retirement benefits in exchange for sole ownership of the home. Your particular situation can also add complexity to the case. If you would like legal insights on the specifics of your circumstances, you can ask Family Lawyers on JustAnswer for their expert opinions.

Is medical disability income considered community property if acquired before marriage?

Medical disability acquired before marriage is generally not considered community property. Benefits that are based on work done during the marriage are considered community property. However since this income was already in place prior to marriage, it would not normally be considered for division in the event of a divorce.

One exception to this would be: if disability funds received during the marriage are mixed with community property funds and get comingled. Once money is comingled, the court will not be able to determine which funds are community property and which funds are separate.

Divorce can be a time consuming and costly experience — emotionally, financially and legally. The legal aspects alone can be terrifying to many people. Understanding community property laws and how they apply to your case can be confusing to someone who has no experience with the legal terms. If you find yourself in a situation that requires legal insight, you ask Family Lawyers on JustAnswer. The Experts on JustAnswer can answer your questions and give you information pertaining to your individual situation.

Ask a Family Lawyer

Ely
Ely, Counselor at Law
Category: General
Satisfied Customers: 9283
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
7286322
Type Your Family Law Question Here...
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Family Lawyers are online & ready to help you now

Ely
Counselor at Law
Satisfied Customers: 8085
Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
LawTalk
Attorney and Counselor at Law
Satisfied Customers: 6424
27+ years legal experience. I remain current in Family Law through regular continuing education.
FiveStarLaw
Lawyer
Satisfied Customers: 6336
25 years of experience helping people like you.

Recent Community Property Questions

  • My mother recently passed away in Cook County, Illinois. I

    My mother recently passed away in Cook County, Illinois. I am her only child, and am living in California. She left behind a husband in Illinois. They have no children. She had no will. I have read about intestate succession in Illinois and understand myself to be an interested party.
    My issue is that my mother's husband considers all assets that my mom held--regardless of how she held them--to be "community property" in the eyes of the law, so he does not plan to open her estate in court, obtain letters of office, or pursue any legal assistance in settling her affairs. If he chooses this path, he is no complying with Illinois state law. I am quite certain that my mother's investments--separate from the house they own together--total much more than 100K, and it is possible that I am designated as a beneficiary on one or more of her retirement/investment accounts. However, her husband is not willing to discuss this with me or to share with me any details of my mother's finical affairs, as he considers them to be his financial affairs now.
    This is because her husband believes her estate is not considered "intestate" since she was married at the time of her death, that the laws of intestate secession do not apply to married couples in Illinois. I know this to be untrue.
    Her husband believes that he can use her death certificate and their marriage license to take control of her accounts and dispose of her assets as he sees fit. I have read enough about intestate secession in Illinois to believe that he will likely experience administrative/legal roadblocks if he does not open her estate and obtain letters of office. Her assets should be distributed according to law, not based on what her husband feels is right. However, I need to understand whether I should trust that the law alone will protect my interests as an interested party in this matter, or what (if any) actions I can/should take to make ensure that my interests are indeed protected.
    I am only seeking fairness, transparency, and compliance with the law. However, I am also concerned about taking actions that my mother's husband would perceive as antagonistic. He has physical possession of my mother's cremated remains, family heirlooms of sentimental value to me, and my original birth certificate, and has met my attempts to discuss financial matters with what I believe to be lack of transparency and unnecessary hostility. How do I assert my legal rights without exposing myself to undesirable consequences?
  • If I was living in Boston and moved back to tx and 5 months

    If I was living in Boston and moved back to tx and 5 months later, filed divorce in Texas, does that make it the wrong court and I can transfer it?
  • My fiance was in a car accident during the 30 day time he

    My fiance was in a car accident during the 30 day time he was asked to provide discovery for a motion to modify parenting time. He was also received a subpoena to attend a deposition on dec. 1st. I am a respondent for that motion and I too have received
    notice of discovery, but only invited to attend the deposition. The discovery is due on Dec. 1st and the accident was on Nov. 22nd. We had been preparing the discovery, but the accident caused traumatic brain injury of my fiance. He is being treated by a neurologist
    and under doctors orders not to read, write, research, go out in public, get too emotional or use his brain nor expose himself to stress. My fiance needs to some how make a motion to not attend the deposition until he is cleared by his doctor. The doctor believes
    it could be as soon as mid december, but most likely it will be after the 1st of the new year. What motion does he need to make? I have an ex parte on Dec. 1st a 8:30am to request the date of the hearing be changed...could I also request that the discovery
    and deposition be moved to or do I need to make a new motion or does my fiance need to make his own motion?
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