Division of Property

In all divorce cases, the court orders a division of the estate of the parties in a manner that the court deems just and right having due regard for the rights of each party and any children of the marriage. Just and right does not require that the marital estate be divided equally.  A court can order an unequal division of the community property when a reasonable basis exists for the court to do so.

The estate of the parties refers to the community estate or community property. Community property consists of the property, other than separate property, acquired by either spouse during marriage. All property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

A court has no authority to divide a spouse’s separate property. Separate property is not part of the community estate, is not divided at the time of divorce, and is set aside to the spouse who owns it. A spouse’s separate property consists of:

  • The property owned or claimed by the spouse before marriage;
  •  The property acquired by the spouse during marriage by gift, devise, or descent; and,
  • The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.