Exceptions To The Equal Division Rule During Divorce

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Community property is generally divided equally during a divorce, but there are exceptions to the rule. Here are some of the cases in which equal distribution doesn't apply.

One Of You Misappropriated Marital Property

This is a situation where one of you deliberately exploits, misuses or misplaces community property without their partner's consent. Anything that deliberately reduces the value of your community property is considered misappropriation. For example, your partner may sell your family business cheaply if they suspect the marriage is headed to divorce. Another example of misappropriation is when your partner gambles away your emergency cash. In such a case, the person who misappropriated the property will have their marital award reduced.

One of You Incurred Educational Debts

Educational debts are regarded as separate debt so if you took a loan to further your education while you were married, don't expect your partner to help you pay them if you divorce. The rationale here is that you are retaining the fruits of the debt (knowledge and skill), so it only makes sense that you shoulder it alone.

One of You is Facing an Individual Tort Liability

A tort liability claim or lawsuit is a situation in which you are being asked to reimburse a victim of your negligent or intentional act. In such a case, you will be asked to face the consequences of your actions alone as long as the negligent or intentional act wasn't for the benefit of the family. 

For example, if you are being sued for defaming a local politician in your personal blog, you have to pay the ensuing settlement out of your own pocket. However, if you accidentally knocked a pedestrian while collecting the children from school, community property may be used to settle the damages.

You are in a "Negative Community" State

Lastly, the judge may also throw equal property division out of the window if it is concluded that you have a negative community situation. This is a case in which your community liabilities exceed your community assets; that is, you owe more community debt than your community assets can pay. In such a case, the interest of the creditors come first, and the spouse with the higher ability to pay (higher earnings or more individual assets) will be asked to shoulder a bigger share of the liabilities.

As you can see, equal property division isn't guaranteed during a divorce; in fact, it is not the norm. Consult a divorce lawyer to help you get your fair share of property division during your divorce.