We Have Been Separated for 12 Years. Are We Still Married?

Brian and Susan Peters have been married for 16 years.   They have not physically lived together for 12 years.   Susan moved to Las Vegas 10 years ago.  They have not even lived in the same state for 10 years.  Are they still married?

Yes, they are married,  You are married until a divorce decree is filed or your spouse passes away.

Brian recently served Susan with divorce papers.  Susan came to my office worried should would be forced to share money in her bank accounts, or the equity in her home?  She bought the home after she moved to Nevada.  Brian’s name is not on the home or the mortgage.  Does Brian get half the home?

The first thing to discuss in this situation is what is community property. Community property is any asset or debt acquired during the marriage.  In a divorce, Nevada courts will divide the community property equally.   When a court uses community property laws, it will equally divide all assets and debts accumulated, or collected (with some exceptions discussed below), from the date of marriage through the date the spouses are officially divorced. Only nine states use community property laws; Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. . All other states use something called “equitable distribution” laws when dividing assets and debts in a divorce.

Susan wanted to emphasize the home was in her name only.  Her bank accounts were also in her name only.   Community property principles apply to all property and debts accumulated during the marriage, regardless of the name on the asset.   Community property does not need a name on the title, deed, or account.  If it was acquired during the marriage it is presumed to be community property.   And it will most likely be divided evenly in a divorce.

This rule is a point of confusion for most of my clients.   Many people believe bank accounts in their name are their separate property.   Or they believe the home or vehicle is theirs because their spouse’s name is not on the title or deed.  Only having your name on an asset does not make it separate property.  Unless there is an written agreement assets or debts acquired during the marriage are considered community property.

There are some exceptions to the community property rule. First, if one spouse owns property before the marriage, it is that spouse’s separate property. Second, if a spouse receives a gift, inheritance, or devise it is that spouse’s separate property even if they receive the property during the marriage.  And of course, there is an exception to these exceptions.

If a spouse has separate property but uses community property (i.e., income) to pay off their separate property, then that separate property becomes “commingled.” Commingled means that the separate property has been mingled, or mixed up with the community property. In that instance, the separate property (either in whole or in part) is transformed into community property and equally divided between the spouses upon their divorce. For example, if a wife inherits a beach house from her father, it would be considered her separate property. However, if the wife uses her community property income to pay the mortgage for the beach house or make improvements to the beach house, it may be considered commingled and become completely, or partially, community property.

Susan wanted to stress how long they have been separated.   This is where Susan has a good argument.  The court has the discretion to unequally divide community property if there are “compelling reasons” to do so.   In the case of Hollenback v. Hollenback, a Nevada court found a long-term separation a compelling reason to unequally divide the husband’s pension.  Like with the Peters, the couple had been separated for many years.  During that separation the husband started a job that offered a pension.   His pension is community property because he is technically married.   But the court found the long separation was a compelling reason to not divide the pension equally with his wife.

Returning to Susan’s dilemma.  Should Brian receive half of the marital home after the spouses have been separated for so many years years?  Should he receive half the equity in this home when he did not pay one penny towards the mortgage, insurance, or upkeep?  Yes, the home is community property because Susan purchased it during the marriage and used her community property wages to pay the mortgage each month.   But Susan has a compelling reason to not divide the accounts or home equally.   Like in the Hollenback case,  Susan should not be forced to divide a home that Brian did not contribute to.  We will argue the long separation and lack of financial contribution is a compelling reason to divide the home unequally in the divorce.