Dividing and Confirming – A Digestible Overview
So you are getting divorced, and now the dreaded conversation of dividing up all that marital property – the house, land, retirement accounts, supposed separate property, etc. – is rearing its ugly head. Something has got to give, right? Which one of you is going to crack first?
The battle over what is yours and what is truly mine in a divorce case is often a testy subject and can get quite convoluted. In these situations, you and your spouse have two choices: Find common ground and agree to the division of marital and separate property on your own, or let the court decide. Oftentimes, it is the court that decides, and that is the topic of this blog.
Before you can understand how the court comes to its decision, you must first understand the three property-type classifications. Marital property, depending on when it was acquired (before the marriage or during), can be classified as community, separate or mixed property.
Community Property
Defined as property acquired or created during the marriage by either spouse, with each spouse sharing equal ownership.
Separate Property
Property that came before the marriage (i.e. one spouse already owned a house, received an inheritance, or property as a gift from a third party). Because the property was owned individually by one spouse, a court cannot legally split ownership.
Mixed Property
Property is considered mixed when it consists of both separate and community property. For example, when both separate and community funds are used to purchase property.
When a court “divides” the spouses’ community property, it is essentially giving each spouse exclusive right of possession over a specific piece of property in the divorce decree. That could seem pretty straightforward, but keep in mind that dividing property does not mean the court will split it 50-50 between the two spouses. The court will decide what is fair and equitable, and maybe what is fair is that one spouse is awarded a third of whatever property is in dispute.
All the court is concerned with is ensuring the community estate has been divided in a just manner – even if that doesn’t jive with what you think is “just and right” in your mind.
Unlike the division of marital property, which is specific to community property, when a court is asked to “confirm” property it is merely awarding separate property to each spouse that owns it. This is typically a very easy process unless there is some sort of ownership dispute, in which case the court again will ultimately decide. The key thing to remember here is that the court is not permitted to award one spouse’s separate property to the other spouse.
Dividing and confirming marital property and separate property are two separate processes and both are equally important in finalizing dissolution suits.
Was this blog helpful? The intent of this blog was to stick to the general basics of the terms dividing and confirming. There are, though, several concepts related to the division and confirmation of property, including the court’s jurisdiction, the process for identifying, characterizing and valuing property, and how community property is divided and how separate property is confirmed. We will get into some of these concepts in subsequent blogs.
If you have additional questions on this or any other topic we have discussed in the past, please give our knowledgeable staff at Nelson Law Group, PC a call. Our staff is always available.
