If you’ve ever gone through a contentious divorce, then you know how grueling the experience can be. And one of the most challenging things to figure out is how the marital assets will be divided.
How the asset division plays out largely depends on what state you live in. Nine states in the U.S. have attempted to make this process easier by becoming community property states.
But what is a community property state, and how do you know if you currently live in one? That’s exactly what we’ll discuss in this article.
What Is A Community Property State?
In a community property state, all of the marital assets are jointly owned so they must be jointly split in the event of a divorce. Some of examples of this include:
- Real estate
- Personal property
- Retirement accounts
- Debts acquired during the marriage
This is largely the result of the Uniform Marital Property Act of 1983. This act defined the ownership of property in a marriage and outlined how these assets would be separated in the event of a divorce.
One of the most notable things that the Uniform Marital Property Act did is to create a class of property that belonged to the marriage, not any particular individual. So, if there was ever any doubt about who a piece of property belonged to, it was considered general marital property.
However, there are some instances when property is considered individual property. Individual property is that which was acquired before the marriage or inherited by one spouse before or during the marriage.
But if you live in a community property state and buy a home while married, even if you purchase it without your spouse, it’s considered community property. In fact, if you buy a home while going through a divorce in a community property state, that could mean your spouse has a claim to the property.
However, as of 2020, community property law is only required in nine states across the U.S. The other 41 states follow common law.
Which States Are Community Property States?
At this point, you’re probably wondering if you live in a community property state. Community property states as of 2020 include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
In these states, community property law applies to all assets acquired by spouses during the marriage. California, Nevada and Washington also include domestic partnerships under community property law.
Though not a community property state, Alaska does have an opt-in community property law. That means spouses can divide their property by community property standards, but they don’t have to.
Exceptions To Community Property Law
There are certain exceptions to community property law. Most states in the U.S. implement common law property to determine ownership of assets acquired during a marriage.
According to common law property, if one member of a married couple acquires property during the marriage then the property belongs to that person alone. The only time that isn’t true is when the property is listed under both spouses’ names.
So, for example, if a married spouse purchases a vehicle and the vehicle is listed under their name alone, it belongs exclusively to that person. In comparison, if that person lived in a community property state, the vehicle would be considered a marital asset.
However, there are certain situations where a couple may be exempt from a community property law. Community property laws don’t apply to the following situations:
- Property was given to one spouse as a gift
- One spouse inherited property during the marriage
- One person received property through a will or trust fund
- The property was acquired before the marriage began
- The property was acquired while the spouses were legally separated and living separately
Can Community Property Laws Be Negated?
Even if you live in a community property state, there are specific circumstances that may negate these laws. Let’s look at some examples of each situation.
A prenuptial agreement is a legal agreement two people enter into before getting married. A prenup outlines what will happen to a couple’s financial assets in the event of a divorce. Many people use prenuptial agreements as a way to protect their assets and circumvent what the law says should happen after a divorce.
Prenuptial agreements may override community property laws, assuming the agreement is valid and doesn’t violate state or federal laws.
Property In Multiple States
Community property law is subject to the IRS classification of a domicile or permanent legal residence. There are many factors that determine if a property is a domicile, including:
- Where state income tax is paid
- Voter registration
- Business ties
- Where the most time is spent
Where a property is a domicile really comes down to a matter of intent. What state do you consider your home state? If you meet the residency requirements in a state that uses common law property, you may be able to get around community property laws.
Filing Taxes Separately
Couples who file taxes separately may face complications with community property law. If you find yourself in this situation, it’s a good idea to consult with a tax professional. That person can help you determine what falls under community property laws and what doesn’t.
The Bottom Line On Community Property States
If you’re going through a divorce and live in a community property state, then the majority of your property is likely considered a marital asset. This means the property will have to be divided evenly between both partners.
These assets include things like real estate, savings, retirement accounts and any debt acquired during the marriage. There are certain exceptions to community property laws, like when a couple has a prenuptial agreement in place. And if you inherited property or bought property before getting married, those assets belong to you alone.
All in all, community property law can have a huge impact on your future as a homeowner. To learn more about buying a home and what your options are as a homeowner, be sure to check out Rocket Mortgage®.