Ask the Lawyer
“Does he get to decide for both of us what property he keeps and what property I keep?”
Question: My husband and I have been separated for a while now. We haven’t decided if we are going to get a divorce. Can my husband keep coming over to my home demanding to pick up property? Every so often he wants something else and all of it is something that we bought together. Does he get to decide for both of us what property he keeps and what property I keep?
Answer: No. One spouse does not have a greater right than the other spouse to “decide” who gets what in a separation or divorce. Property is classified as either separate property or community property. All property acquired by each spouse before they married one another is part of their own separate property. Separate property never changes to become community property when people marry one another. Property acquired by the couple during their marriage is community property (or marital property) and owned by both of them. Some property acquired during marriage is the separate property of either party, such as property received as a gift, or through a Will or an inheritance. Some money received from a personal injury settlement is separate property as well.
Separate property may never be taken away from (divested) a party in a divorce proceeding. If a spouse is demanding anything that truly belongs to the other spouse, the answer should be “no.” When parties are separated and there is no divorce case pending than each party has an equal right to the parties’ community property; however, if the parties live apart and they do not have a right to enter the private residence of the other, generally the party in possession of the community property has “custody” over it.
Allowing a spouse to enter a private residence and take community property negates a claim that it was taken without consent. Consent was given by either allowing them access, or by turning the property over to them. When parties truly cannot agree on who gets what a judge may decide in the property division portion of a divorce case.
If debt is owed for a particular piece of property, that may be something a judge takes into consideration in a divorce proceeding. Generally, the person who continues to pay for a particular item of community property is the one who keeps that property, and of course there are exceptions to the general rule. A judge may even order the party with more earning ability to pay a greater portion of debt, regardless of why the debt was accrued or who eventually keeps the property.
If parties cannot agree on which of them will keep what property items, the best course of action is to seek an alternate plan to distribute the property. That may include attending mediation or actually having the judge make that decision. The decision by the judge should be considered a last resort. Fighting hard enough over property to eventually end up in court over it costs more than the replacement value of the property in the end, when one considers attorney’s fees and expenses. When no divorce action is pending, either party has an equal right to all marital property, but the one who has it in their possession is a custodian of sorts and may keep it in their possession. They may also choose to give it to their spouse; however, spouses do not have an automatic right to enter the private residence of the other spouse to take property items. If that occurs without consent, it is in a sense stealing, and depending upon the circumstances, legal authorities may need to be contacted.
This article is meant for informational purposes only and not meant as a substitute for sound legal advice. Direct questions to Ask the Lawyer to firstname.lastname@example.org or via the Facebook Page for the Dalhart Texan.