Community property and community debt are supposed to be divided 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.” This does not mean that community property or debt must necessarily be equally divided, and it often will not be. The judge dividing community property and debt may consider many factors, such as the size of your and your spouse’s separate estate, and any fault in causing the divorce.
Community property cannot always be easily divided. Take for example the situation where two people own the home and want to get divorced. The easiest solution would be for the judge to order the parties to sell the house and divide the proceeds. However, now add children to the picture. The judge will often order that the spouse with whom the children will live be permitted to remain in the house with the children to permit the children to continue living in their home and upset their lives as little as possible.
However, this does not mean that the other spouse loses his or her community interest in the house. The judge may order the house be sold and the proceeds divided after the youngest of the children reaches the age of eighteen. Another remedy may be to award full ownership of the house to the spouse with whom the children will reside, but give the other spouse the full interest in some other community property, such as a vacation home, savings account, retirement account or another asset.
Many factors go into a judge’s decision regarding the division of community property in a contested divorce matter. However, the parties may agree to almost any type of division that they deem to be fair. If an agreement is made, it is important that the agreement divide all of the marital property so as not to risk having to return to court to request the judge divide an asset or debt that was not addressed in the original divorce proceeding