Property Division

The division of the community estate is one of the two major portions of any divorce.  Although nothing could be more important than the children involved in a case, the proper handling of the property division is critical for one reason that makes it unique from issues involving children -- it is irreversible.  Whereas most, if not all of the issues having to do with the children in a divorce are susceptible to revising through modification actions, property division is final.


The division of property is something handled in the final decree, not in the Temporary Orders.  Temporary Orders can only deal with the "Temporary Use and Possession" of property.  At the time of the final decree, one or the other party is generally divested of all ownership interest in every piece of community property.  As for the Separate Property of the parties, the court is theoretically without the jurisdiction (power) to divest a party of his or her interest in Separate Property.


The division of property in any given estate may involve complex concepts of Community Property, Separate Property, Economic Contribution, and Reimbursement, as well as all of the legal concepts that make up the law dealing with Retirement Accounts, Corporations, Partnerships, and Governmental or Military Retirement, to name a few.


One simple-to-state, but often misstated and misunderstood concept at issue in virtually all divorces is that of Community Property.  Although many people believe that each spouse owns half of all community property items, that is simply not true.  At divorce, the court has the power to divide all community property of the estate in whatever manner it determines to be fair and equitable.  That means that it is conceivable that the court could give all of the community property to either spouse, divide it 50/50, 60/40, or any other division that it believes proper.


Understanding what the court can do about the property if a settlement is not reached and predicting the likely boundaries of what the court will do are two of the reasons that attempting to handle the property division in a divorce without the help of competent legal counsel is extremely risky and potentially very costly.