Community Property Division Types

women.idaho.com, Nov 16, 2004

A presumption exists that all property acquired during the marriage is community property. This presumption can be overcome by establishing that the property was acquired as a gift or inheritance during the marriage. Community property includes military retirement benefits, disability insurance payments made during the marriage and pension plans earned during the marriage. Professional degrees may be considered community property by the court.
Separate property generally includes that property owned by each spouse when the marriage began and property acquired by one spouse during the marriage by gift or inheritance. Separate property is sometimes converted during the marriage to community property as a result of the way the parties treated the property.
If community funds or community effort were used to improve the separate property of either spouse, the community may be entitled to reimbursement. If the parties commingle separate and community funds so that they cannot be traced, the funds become community property.
In dividing community property upon divorce, the court is required to divide the community property in a substantially equal fashion unless compelling reasons exist for a different division. A "substantially equal fashion" does not require an exact 50-50 division. Factors the court may consider include: the duration of the marriage; agreements between the parties; the age, health, occupation, income, vocational skills and employability of each spouse; the needs of each spouse; present and future earning capacity of each spouse; spousal support to be awarded; and retirement benefits available