In a divorce context, “communal property” refers to property obtained during the marriage.

It usually does not include property that was obtained:

  • Before marriage
  • As a gift to an individual spouse
  • After the divorce proceedings have been started

Some states follow principles of “community property,” meaning that the communal property will be split equally between the spouses upon divorce. Non-community property states may have separate rules that oversee the distribution of communal property.

The term “communal property” is also known as “marital property,” “shared property,” or “community property.” Some states observe principles of “community property,” meaning that the communal property will be split equally between the spouses upon divorce. Non-community property states may have additional rules that govern the distribution of communal property.

What Is the Difference between Communal Property and Separate Property?

The difference between communal and separate property becomes apparent upon divorce when the property must diverge between the two parties. If the property is classified as communal property or community property, each party will own an undivided one-half interest in the property. For instance, if the couple’s car is considered communal property, it will likely be sold, with each partner acquiring exactly half of the profits.

On the other hand, separate property will be fully allocated to its rightful owner, with no proceeds going to the other spouse. For instance, if one spouse acquired a valuable painting as a gift from a relative, they will be entitled to keep the painting or its proceeds from a sale upon divorce. However, the painting owner must establish that the painting was intended to be given solely to them as a gift and not to both spouses.

The lines dividing communal property and separate property are sometimes challenging to define. This is particularly true if the couple has been married for a long time and can no longer record the origin of the property. Some states also observe quasi-community property principles, which deal with property distributions if the couple has moved from a community property state to a non-community property state, and vice versa.

How is Property Divided When Getting a Divorce?

When a couple gets a separation or divorce, it is common to divide the property either through a mutual agreement or through a court proceeding. When taken into court, these disputes are dealt with in terms of property shared between the parties and property considered “separate property.”

As these judgments are made in court, any property considered separate property is not relevant to the proceeding. This is because it belongs to the individual whose separate property it is and typically won’t be subject to division by the court. The shared property will be classified as belonging to both spouses, and the court will decide its future owner.

What Type of Property is Commonly Referred to as Separate Property?

Categories of property in a divorce context may hinge on state laws. Yet, generally speaking, the following are the most common forms of separate property:

  • Inheritances and gifts (such as property acquired through a will);
  • Heirlooms (usually valuable objects kept in the family, such as jewelry);
  • Chattels (property) used entirely or principally for business purposes;
  • Property obtained under a trust;
  • The property the partners proclaim to be separate under an agreement;
  • Property obtained before the marriage began; and
  • Property acquired with the proceeds of separate property and not intended for the use or advantage of both partners.

Perhaps the most distinctly defined separate property is those items declared separate property through an agreement between the parties. Therefore, if there are any explicit property items or assets that the parties don’t want to be classified as shared property, they should form an agreement and list the property as separate property. This is generally done through a legal document such as a prenuptial agreement.

Nevertheless, it is essential to remember that you must also treat the property as separate. Suppose you declare a home you owned before marriage as separate property, and you rent it out and receive income that you declare to be separate income. In that case, you cannot commingle that income with community property.

What Property is Commonly Classified as Shared Property?

The following are the most common forms of shared property in a divorce or separation context:

  • The home taken in the name of the spouses;
  • The family chattels, which include items such as the furniture, fittings, household equipment and appliances, cars, and boats, even if they are in one person’s name;
  • Any common or jointly-owned property;
  • Property obtained before the marriage relationship started if it was intended for the couple’s common use or benefit;
  • All earned income and property purchased after the marriage relationship started; and
  • The value added during the marriage relationship to superannuation and life insurance policies.

Thus, the marriage timeline is a significant factor when deciding whether to classify property as shared or separate. In most examples, property acquired during the marriage is considered shared property. Property received before or after the marriage relationship will generally be classified as separate property. There may, of course, be exceptions to these policies based on state laws.

Can a Divorce Lawyer Help Me?

Divorcing a spouse can be an emotionally taxing and challenging life event. Unfortunately, many individuals have had to experience legally dissolving a marriage, but with an experienced divorce lawyer, it can be a little less bitter and daunting. Some problems are more complex than others, and having legal representation throughout can be invaluable.

Ending a marriage can be a traumatic event, but it can also be rather costly. For couples with a fair amount of assets, hiring an attorney who can protect their client’s interests while negotiating a favorable outcome to the case is good. Divorce cases that involve minor children, considerable debt or property, and marriages that have lasted a long time are best handled by divorce lawyers.

In cases where both parties want the divorce and agree to the marriage coming to an end, the legal process is generally more straightforward. In other circumstances, where one party is surprised when served with divorce papers, the process can be more complicated. Oftentimes, the blindsided party will do whatever they can to prolong the process and make the situation more painful for both sides.

Ideally, if both sides can agree on as many issues as possible, the divorce process should reach a quicker and more seamless conclusion. Many divorces are contentious affairs, and having an experienced divorce lawyer on your side can help you remain calm while providing a buffer to any excessive confrontations.

Do I Need a Lawyer?

Divorce proceedings can often be complex, especially concerning property distributions. If you have questions or concerns regarding communal property distributions in a divorce, you should contact a divorce lawyer for advice. Your attorney will be able to advise you regarding the distribution of the various items of property you are dealing with.

Again, divorce laws are very different for each region, so it may be necessary to contact a lawyer familiar with your area’s laws. Use LegalMatch to find a professional divorce lawyer near you and take the first steps towards resolving your legal issues. There is no fee to schedule an initial consultation.