By Hannah Mower
Legal Requirements for Divorce
In a community property state, assets acquired during the duration of the marriage are generally subject to equitable distribution in a divorce. This means the court will divide the marital property fairly, though not necessarily equally. The length of the marriage can influence the distribution of property.
It is important to note that the fact that a couple has not lived together for ten years does not automatically mean they are divorced. Divorce requires a legal process, typically involving a court order.
Generally, a divorce requires filing a petition with the court, meeting residency requirements, and establishing grounds for divorce (e.g. irreconcilable differences).
Impact of Separation on Property
Separation, even for a long period, does not automatically end a marriage or affect the community property status of assets. However, the date of separation is important for determining what is considered community of property. Generally, assets acquired during the marriage, up to the date of separation, are considered community of property. Assets acquired after the date of separation are typically considered separate property.
The default position is that the assets of the joint estate as at the date of divorce will be divided equally between the parties, unless forfeiture is claimed by the one of the parties and such claim is granted by the court in form of a forfeiture order. A forfeiture order must be specifically pleaded in the summons.
Conclusion
The length of the marriage is one of the significant factors in determining whether spousal maintenance (alimony) is awarded. The longer the marriage, the more likely the court can order spousal maintenance, also the length of time they have been separated will be relevant to the division of property and the potential for spousal maintenance.
