PROPERTY DIVISION
Community Property
Generally, property acquired during the marriage and prior to separation is presumed to be community property, meaning that it is owned one half by each spouse. There are exceptions to this. Generally, those items acquired during marriage by gift or inheritance are the separate property of the spouse receiving it.
Separate Property
All property that was acquired before marriage or after separation is presumed to be separate property as long as that property has been kept separate. In addition, a gift or inheritance received during the marriage is presumed to be the separate property of the one who received it as long as those items are not commingled (mixed up) with the community property.
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House
Typically, the family residence is the largest asset of the parties. Determining whether it is community property or separate property may involve several determinations, including how title is currently held, the source of the downpayment of the house, when it was purchased, if and when it was refinanced and whether the parties lived in the property during the marriage.
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Retirement Account
Retirement accounts may be another large asset of the parties. Under the Employee Retirement Income Security Act of 1974 (ERISA) a Qualified Domestic Relations Order "QDRO" may be ordered by a state court that will divide an ERISA-qualified employee benefit plan between the parties. A QDRO directs the plan to pay certain benefits to the other party. It is also possible to evaluate the current value of a pension plan and allocate that plan to one party and offset that value with other assets allocated to the other party. It is relatively easy to determine the value of a defined-contribution plan such as a 401(k) plan because the plan has a value of that account on any certain date. However, when there is a defined-benefit plan, the parties should obtain the value with assistance from an actuarial expert in valuing the present value of the plan.
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Tracing
Typically when assets are commingled (mixed up), a tracing of the source of the asset must be done to show where it originally came from. A forensic accountant is skilled in providing this service and is often helpful in determining how much of an asset is community or separate property.
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Military Pension
There are special rules for a Military Pension and also military disability pay. Under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. 1408, it is possible to obtain an order that the military actually directly pay the non-military spouse their share of benefits in the event that the parties have been married for at least ten years.
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