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Does the judge divide the community property 50/50? The judge divides community property in a "just and right" manner, which may result, depending on the circumstances of the case, in the judge giving more property to one of the spouses. Back to the top. Does the judge divide community property and separate property at the time of divorce? No. The judge only divides the community property in a "just and right" manner, while taking into consideration the rights of each party and any children of the marriage. In some circumstances, the judge may award more of the community property to one of the spouses. Back to the top. What factors does the judge consider when dividing the property? When dividing the property, the judge can consider any relevant circumstances, factors which may include, among others, evidence of: (1) fault in the break-up of the marriage; (2) differences in earning capacities and education; (3) age of the parties; (4) health of the parties; (5) any special needs of the parties; (6) separate property of either spouse. Back to the top. How do I get the property that is awarded to me in the divorce? There are many ways to get the property you are awarded. Some of the more common methods include real estate documents, orders to employers to divide retirement and other benefits, orders in the divorce decree to transfer the property, documents required by banks and other financial institutions directing the division and transfer of funds and accounts, technical business documents and many, many others. Because there are so many types of property and so many ways to transfer property, this FAQ cannot address any of them in detail, and an attorney should be consulted. Back to the top. What happens to community property that is not divided in a divorce? All community property should be brought up to the judge and divided at the time of the divorce. Any community property not divided at the time of the divorce is thereafter jointly owned by the parties. Within certain time constraints, either party, following the divorce, may request a judge to divide this jointly owned property. As at the time of the divorce, the judge would then divide the property in a just and right manner, taking into consideration the rights of each party and any children of the marriage. Back to the top. What is community property? It is presumed that all property acquired by the parties during the marriage is community property. Back to the top. What is separate property? Separate property is any property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or by inheritance. Back to the top. What happens to separate property? Once property is proven to be separate, it is awarded to the party claiming it. Back to the top. How does a party prove that an item of property is separate property? There are a variety of methods to prove the separate nature of an item of property. Generally, however, a party must provide evidence of when and how he or she received the property. If the property in question has changed form by being sold, and the money held or reinvested, then the party must also provide evidence tracing the change from one form into another. Back to the top. Who decides the value of my property? Each party is required to provide the judge with an inventory of all property and its value, including each party's claim to separate property. The judge decides the value of the property, based on the evidence, when there is a dispute. Back to the top. |
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