Community property (United States) or Community of Property (South Africa) is a marital property regime under which one half of all property owned by one spouse before marriage (except for gifts or inheritances) is automatically owned by the other spouse (property gain), and will become that spouse's separate property, upon divorce (property subject to loss). All property that remain in the name of one spouse during marriage is automatically acquired by the other spouse as to 50% of its value (community property rights), subject to a loss of 50 % of all property upon divorce (separation of property). As for property acquired by one spouse, that is kept undisclosed during marriage will automatically be owned by the other spouse as that spouse's separate property, as to 50% of its value, regardless, while non-shared property is a cause of action for divorce, at 200% of its market price, owed to the divorcing spouse.
Property owned by one spouse after the marriage is sometimes referred to as the "separate property" of that spouse. There are instances in which the community can gain an interest in inherited property and even situations in which gifts can be "transmuted" into community property.
The community property concept originated in civil law jurisdictions but is now also found in some common law jurisdictions.[ citation needed ]. Community property is otherwise not a concept in the Family Code.[ clarification needed ]
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In South Africa, if a couple does not sign an antenuptial contract, before a notary public, which is subsequently registered at a deeds office, prior to marriage, they are married in community of property, which means that all of their assets and liabilities (even those acquired before the marriage) are merged into a joint estate during their marriage, in which each spouse has an undivided half-share. Each spouse has equal power to deal independently with the estate, except that certain major transactions require the consent of both spouses.One of the consequences of community of property in South Africa is that if one spouse is declared insolvent (bankrupt) during the marriage, the other also becomes insolvent, a potentially devastating consequence.
The United States has nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.Alaska has also adopted a community property system, but it is optional. Spouses may create community property by entering into a community property agreement or by creating a community property trust. In 2010, Tennessee adopted a law similar to Alaska's and allows residents and non-residents to opt into community property through a community property trust. The commonwealth of Puerto Rico allows property to be owned as community property also as do several Native American jurisdictions.
Division of community property may take place by item by splitting all items or by values. In some jurisdictions, such as California, a 50/50 division of community property is strictly mandated by statuteso the focus then shifts to whether particular items are to be classified as community or separate property. In other jurisdictions, such as Texas, a divorce court may decree an "equitable distribution" of community property, which may result in an unequal division of such. In non-community property states property may be divided by equitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property (not community property). See division of property. Division of community debts may not be the same as division of community property. For example, in California, community property is required to be divided "equally" while community debt is required to be divided "equitably".
A spouse is a significant other in a marriage, civil union, or common-law marriage. The term is gender neutral, whereas a male spouse is a husband and a female spouse is a wife. Although a spouse is a form of significant other, the latter term also includes non-marital partners who play a social role similar to that of a spouse, but do not have rights and duties reserved by law to a spouse.
Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony, child visitation / access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person.
Alimony is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. The obligation arises from the divorce law or family law of each country.
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order. In cases where children are involved, a court order of legal separation often makes child custody arrangements, specifying sole custody or shared parenting, as well as child support. Some couples obtain a legal separation as an alternative to a divorce, based on moral or religious objections to divorce.
Common-law marriage, also known as sui iuris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a legal framework in a limited number of jurisdictions where a couple is legally considered married, without that couple having formally registered their relation as a civil or religious marriage.
A prenuptial agreement, antenuptial agreement, or premarital agreement, is a written contract entered into by a couple prior to marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property and retirement benefits and savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse’s right to claim an elective share of the estate of the deceased spouse.
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce. It may be done by agreement, through a property settlement, or by judicial decree.
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement in civil-law countries, and depend on the lex domicilii of the spouses at the time of or immediately following the wedding.. In most Common law jurisdictions, the default and only matrimonial regime is separation of property, though some US states, known as community property states, are an exception. Also, in England, the birthplace of Common law, pre-nuptial agreements were until recently completely unrecognized, and although the principle of separation of property prevailed, Courts are enabled to make a series of orders upon divorce regulating the distribution of assets.
A qualified domestic relations order, is a judicial order in the United States, entered as part of a property division in a divorce or legal separation that splits a retirement plan or pension plan by recognizing joint marital ownership interests in the plan, specifically the former spouse's interest in that spouse's share of the asset. A QDRO's recognition of spousal ownership interest in a plan participant's (employee's) pension plan awards a portion of the plan participant's benefit to an alternate payee. An alternate payee must be a spouse, former spouse, child or other dependent of the plan participant. A QDRO may also be entered for spousal support or child support.
No-fault divorce is a divorce in which the dissolution of a marriage does not require a showing of wrongdoing by either party. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract.
A husband is a male in a marital relationship, who may also be referred to as a spouse or partner. The rights and obligations of a husband regarding his spouse and others, and his status in the community and in law, vary between societies, cultures and have varied over time.
Forced heirship is a form of testate partible inheritance whereby the estate of a deceased is separated into (1) an indefeasible portion, the forced estate, passing to the deceased's next-of-kin (conjunctissimi), and (2) a discretionary portion, or free estate, to be freely disposed of by will. Forced heirship is generally a feature of civil-law legal systems which do not recognize total freedom of testation. Normally, the deceased's estate is in-gathered and wound up without discharging liabilities, which means accepting inheritance includes accepting the liabilities attached to inherited property. The forced estate is divided into shares which include the share of issue and the spousal share. This provides a minimum protection that cannot be defeated by will. The free estate, on the other hand, is at the discretion of a testator to be distributed by will on death to whomever he or she chooses. Takers in the forced estate are known as forced heirs.
The type, functions, and characteristics of marriage vary from culture to culture, and can change over time. In general there are two types: civil marriage and religious marriage, and typically marriages employ a combination of both. Marriages between people of differing religions are called interfaith marriages, while marital conversion, a more controversial concept than interfaith marriage, refers to the religious conversion of one partner to the other's religion for sake of satisfying a religious requirement.
This article is a general overview of divorce laws around the world. Every nation in the world allows its residents to divorce under some conditions except the Philippines and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. In these two countries, laws only allow annulment of marriages.
Like marriage, divorce in the United States is under the jurisdiction of state governments, not the federal government. Divorce or "dissolution of marriage" is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the status of being single and permitting them to marry other individuals. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.
Van Camp accounting is one of the two methods California community property law uses to deal with community funds and/or labor used to enhance the value of separate property. The method is named after a 1921 divorce case, Van Camp v. Van Camp.
Marriage in South Africa exists in a number of different forms, as a result of the diversity of religions and cultures in the country. A man in South Africa may have more than one spouse but a South African woman may only have one spouse. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, and in 2006 South Africa became the fifth country in the world to allow same-sex marriage.
The Custom of Paris was one of France's regional custumals of civil law. It was the law of the land in Paris and the surrounding region in the 16th–18th centuries and was applied to French overseas colonies, including New France. First written in 1507 and revised in 1580 and 1605, the Custom of Paris was a compilation and systematization of Renaissance-era customary law. Divided into 16 sections, it contained 362 articles concerning family and inheritance, property, and debt recovery. It was the main source of law in New France from the earliest settlement, but other provincial customs were sometimes invoked in the early period.
Military divorce is a specific type of divorce that arises when one or both partners are members of the military. Although typically an uncontested divorce, military divorces are different because they require additional requirements to be fulfilled. Divorces occur less frequently than within the civilian population. They present a special set of challenges that make military divorces more complicated than a typical divorce. For example, The Federal Service Members Civil Relief Act of 2003 requires any person seeking a divorce to state that their spouse is or is not currently a member of the United States armed forces. This is meant to prevent spouses from seeking divorces from service members who would be unable to attend divorce proceedings.
The United States has nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska has also adopted a community property system, but it is optional. Spouses may create community property by entering into a community property agreement or by creating a community property trust. In 2010, Tennessee adopted a law similar to Alaska's and allows residents and non-residents to opt into community property through a community property trust. The commonwealth of Puerto Rico allows property to be owned as community property also as do several Native American jurisdictions. In the case of Puerto Rico, the island had been under community property law since its settlement by Spain in 1493. The U.S. Supreme Court ruled that a similar statute allowing spouses to elect a community property system under Oklahoma law would not be recognized for federal income tax reporting purposes. The Harmon decision should also apply to the Alaska system for income reporting purposes.