A Physical Separation is NOT a Divorce!!
Mr. Jones was in court today. He was not happy to hear the judge’s preliminary thoughts. His wife, who he has not lived with for 22 years, would likely be entitled to half his retirement and half the equity in his home. “How is she entitled to half of the things I earned during our separation!?” The answer is simple. Nevada is not California.
Community property is all property acquired during the marriage. Absent a compelling reason, all community property will be divided evenly in a divorce. The name on the title or the account does not make the property a spouse’s separate property. California ends community property on a “final separation”. Nevada ends community property when the final Divorce Decree is filed.
A physical separation is not a divorce. And a physical separation is not a legal separation. Therefore, the community property did not stop 22 years ago when they separated. In Mr. Jones’s situation, she is entitled to half of what he gained during the separation, and vice versa. The problem is he gained much more than her during the separation.
Clients in Mr. Jones’ situation cannot argue the community property has stopped. Instead we must argue a “compelling” reason for not dividing the community property equally. A long physical separation would be the compelling reason. Thankfully, we were able to reach a settlement because there is no guarantee the judge would have agreed with this argument.
The lesson to be learned. A physical separation does not stop community property from accumulating. Your spouse may be to entitled to half the community property you acquire during the separation.
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