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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.
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