Exceptions to the Equal Division of Community Property in Divorce
While it is true that spouses share equally in community property, there are certain exceptions.
The goal of the court in dividing community property during a divorce is to ensure that the parties get an equitable division of the community property. Sometimes, however, it is only through the uneven distribution of community property that an equitable division can be achieved.
Some of these exceptions include:
Cases of deliberate misappropriation of property, acts of domestic violence, attempted murder of the other spouse, when debts exceed assets, personal injury damages, the community property estate is worth less than $5,000 and the other party can’t be located, and by agreement between the parties.
If there is a showing that one party deliberately misappropriated community assets to exclude the other party, the court may adjust the division of community property in order to offset the misappropriated amount, or to the extent necessary to reimburse the other party.
Acts of domestic violence, attempted murder of a spouse, or debts in excess of assets
In cases where there was domestic violence and civil damages were ordered to be paid by the offending spouse to the other, this judgment for civil damages may be enforced against the share of the offending spouse in the community property.
Not all cases of an exception to the equal division of community property involve some form of misdeed committed by one spouse to the other. Sometimes, it depends on the unique circumstances of the married couple, or it may be based on a voluntary agreement between them.
Personal Injury Damages
If one party received damages due to a personal injury action during the marriage, such damages are considered “community estate personal injury damages.”
These damages arising out of personal injury may be assigned by the court directly to the party who suffered the damages, regardless of whether or not they are considered community property.
This is because the damages suffered by the party are “personal” to him and were intended as compensation for the injuries suffered by the individual in order to make him whole. And this is true whether these damages are physical, psychological, or emotional.
However, such community estate personal injury damages may also be distributed to the non-injured spouse, if warranted by the circumstances. For instance, to the extent that the injury also affected the non-injured spouse, if there has been an extensive length of time since the award of damages were received, and if such community estate personal injury damages have already been commingled with the community estate, the court may award some portion to the non-injured spouse.
Courts may also make adjustments to the division of community properties resulting from personal injury damages depending on the economic needs of both parties. However, the party who actually suffered the personal injury must receive at least half of the damages.
If Community property is less than $5,000 and the other party cannot be located
If one party has filed for divorce and the other party is nowhere to be found, the court may award that party the entire community estate, provided that the community estate is less than $5,000.
There must be a showing, however, that there was a genuine attempt to locate and/or serve the unavailable party, such as through the inability to serve process upon him despite attempts to discover his location.
Based on the agreement of both parties
The parties themselves may agree on the division of the marital property, whereby one party is assigned a significantly greater portion than the other party.
To be valid, however, this agreement has to be either in writing or made by oral stipulation in court.
If this agreement was made through a private written agreement, its validity might be questioned on the basis of fraud, duress, or undue influence.
A private oral agreement can be ratified by one party, even if he does so against the advice of his counsel, as long as the court is satisfied that he is doing so with a clear understanding and acceptance of the consequences and that he is doing so knowingly and intelligently.