Once I Served My Husband the Divorce Papers, What Happened to Our Community Property?
Divorce papers can be anything from a proposed separation agreement to a final divorce judgment. When someone talks about "serving" something, however, this typically refers to the divorce petition, sometimes called a "complaint." As a general rule, nothing actually happens to a couple's marital property with the mere filing or service of a divorce complaint. What happens afterward, however, depends upon what the plaintiff asked for and what the defendant puts in his answer.
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Property Division in General
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Marital property is divided under a state's community property or equitable distribution (ED) laws. Community property states divide marital property equally, whereas ED states seek to divide it equitably, which means fairly. "Equal" and "fair" don't always mean the same thing, so ED statutes contain a list of factors justifying an unequal division in certain cases. In both community property and ED states, title is irrelevant to the question of whether property is marital or separate. If it's marital, a court can divide it. If neither party asserts community property or ED rights prior to divorce, they will generally lose these rights. Ownership of property then devolves into a title basis, which means if your name is on it, it's yours.
Effect of Filing and Serving the Divorce Complaint
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While the marital estate begins accruing on date of marriage in all states, the states differ on when it stops accruing. Some states define the end date as date of separation, whereas others define it as date of divorce or date of entry of a legal separation decree. Still others stop the marital estate from accruing on the date of filing of a divorce complaint. If your state is one of these, the filing of your divorce complaint put a stop to the growth of the marital estate but didn't actually do anything to resolve ownership of marital assets.
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Claims for Relief
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Community property and ED rights aren't automatic; somebody has to ask for it in a court filing in order to prevent the estate from reverting to title theory upon the entry of a divorce decree. If the plaintiff asked for community property or ED in the complaint or the defendant asked for it in a counterclaim, the court will generally preserve that claim in the divorce judgment. Depending upon the complexity of the case, actual legal ownership of the property can then remain in limbo for years.
Possession of Property During Pendency of Community Property or Equitable Distribution
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Just because somebody asks for community property or ED doesn't mean the court actually starts making rulings right away. After the filing and service of a property division claim, property remains in the same place as before. Although there may be proceedings affecting the ownership of that property, parties can still sell, waste or hide marital property, as long as they're willing to account for it later. In order to prevent irreparable loss, courts may enter restraining orders preventing a party from doing these things; however, a party has to actually ask for a restraining order before a court can enter one.
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References
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