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Don't Get Fleeced: Characteristics Of A Martial Community Property Relationship

If you are married and you live in a community property state, then you should know something about the law of community property. It can get pretty complex, and the law varies somewhat from state to state. Nevertheless, following are some characteristics that may help you understand community property law a little better.

1.Joint Management and Control of Property

Neither spouse may unilaterally control or dispose of the marital property – the consent of both spouses is required. For example, if your house is community property (generally speaking, if it was not a gift and if it was acquired with money that was earned by either spouse during the marriage), then your spouse will have to execute the deed in order for you to sell it – you cannot transfer the deed by yourself.

2. Severance

It is commonly thought that “community property” means that each spouse owns 50% of the marital property. Of course that is an oversimplification, but in any case even when there is a 50/50 split, it applies only after divorce. While you’re still married, it all belongs to both of you. What this means in practice is that, for example, you cannot force your wife to sell your house and split the proceeds 50/50 so you can get your “cut” - you have to either divorce her or get her to consent to the sale.

3. What happens if one spouse dies?

If one spouse dies without a will, the dead spouse’s 50% interest in the community property will go to the surviving spouse, meaning that the marital property will now be 100% owned by the surviving spouse. But while alive, either spouse may will his/her half interest in the community property to another to take effect at death. Some states have laws limiting this right.

4. Can creditors seize the marital property to satisfy the debts of one spouse?

It depends on the nature of the debt. If the debt belongs to Husband Hal (if, for example, it was taken out before the marriage, or in some cases if assets acquired by Hal before the marriage are used as collateral to secure a debt), then Hal’s creditors can seize that property to satisfy the debt. If, on the other hand, the debt belongs to the marital community (for example, a family home acquired after the marriage), then Hal’s creditors cannot seize the marital property to satisfy a debt that belongs to Hal alone. That also means that they cannot sell the marital property, take 50% of it, and return 50% to Hal’s wife.

DISCLAIMER: The following is intended for reference only and not as legal advice.

Submitted by:

Bob Miles

Real Estate Law in Plain English explains real estate law without the legalese.




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