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What You Need to Know About Conjugal Properties

Updated on October 30, 2015

Many people mistake conjugal property to be everything that the couple owns together, but when actually reading material about this topic, one should look for marital properties instead. Marital properties span everything from shared and individual incomes, properties, inheritance, and bequeathing of shares. Conjugal properties can be a part of reading about marital rights especially in the process of a divorce as the division of marital properties can be affected by the subjugation of one’s conjugal rights.

Marital and Non-Marital Property

Determining marital and non-marital property is important when creating a will to divide the properties among a spouse’s living relatives and the surviving spouse. It is also important when filing for divorce so that the marital properties can be divided equitably between the spouses. In the absence of a prenup or other written agreement between the spouses for the separation of properties, the marital properties are:

  • Properties bought using the community property income
  • The combined income earned while the marriage is active
  • Properties owned as “husband and wife”
  • Individual properties that have been mixed up with community property and will be hard to separate

Even with the community property covering everything owned by the spouses within the span of the marriage, each one can still have individual properties such as:

  • Properties inherited only by one spouse
  • Properties or items received as gifts from other people
  • Properties or items received as gifts from the spouse
  • Properties owned before marriage
  • Property acquired in exchange for gifts, inheritance, and exchange of property owned before the marriage
  • Property owned after legal separation
  • Property agreed upon by the parties to be excluded on the community property, with testimony of valid agreement

The courts cannot bestow ownership of non-marital properties, as these are the individual properties of the spouses and are not part of the community property. Meanwhile, dividing the community property is under the jurisdiction of the law and would be done equitably; equitability in most states does not imply equal division because certain factors are considered. These factors include:

  • Contribution to the acquisition of a property
  • Contribution to the increase/decrease in value of property
  • Value of the property
  • Length of the marriage
  • Economic circumstances and custody over children
  • Obligations from a previous marriage
  • Post-nuptial agreement
  • Source of income and viability to get a new job
  • Needs of each party and the custodial needs of the children they have custody for

Property after a Spouse’s Death

What happens to the properties owned by a married couple will be determined by the manner in which they bought them. Spouses can choose to acquire properties as:

  • Joint tenancy
  • Community property
  • Community property with rights of survivorship

Joint tenancy is not limited to married couples, as anyone living together such as a brother and sister can acquire property this way. The important thing to remember is that in joint tenancy, the property that has been acquired is owned in entirety by both the tenants which means that if a spouse dies his share goes to the other spouse. The property cannot be split up. Joint tenancy automatically involves right of survivorship, meaning that the surviving spouse will automatically get the share of the late spouse, giving him 100 percent ownership of the property.

Meanwhile, community properties are shared by the couple equally and their shares can be passed on to anyone through their last will and testament. However, they cannot pass on more than their share of the property. If the spouse dies without a will, the spouse will be entitled to some of the property, but the ownership will depend on whether the spouses have children. If the community property comes with rights of survivorship, the surviving spouse will receive the late spouse’s share of the community property without doubt. The spouse cannot leave his share to anyone else in their last will and testament.

What Happens to Property Owned Before Marriage?

Any property owned before marriage remains to be a property of the owner regardless of the state of the marriage. However, if the property has been combined with community property and it will be hard to separate it, it becomes absorbed into the community property. An example is putting inherited money into the joint savings account of the spouses. If it is combined with the spouses’ community property income, it can earn interest together with them, making it hard to determine the interest of just the inherited money. Unless proper documentation makes it clear that the money has been inherited, it can be considered as community property.

The owner of the property can do as he wishes, and he can also bequeath these properties to anyone. However, if the owner of the property died, leaving a surviving spouse, the property will go to the late spouse’s dependents such as his or her parents or children. In the event that there are no dependents, the property will be divided among the surviving spouse and brothers and sisters of the late spouse.

Dividing Gifts and Inheritance

Gifts and inheritance usually do not get mingled with the community property as they are solely owned by the person who received them. Inheritance acquired by the spouse before or during marriage remains to be his. Gifts from other people or from one spouse to another are also considered personal property. An individual can pass on inherited property to anyone at will.

Prenups and Conjugal Rights

Unless a prenup or another written agreement is present, the community law applies to the spouses. But in the event of a prenup, the two parties can agree on separation of assets or interests throughout the marriage. The parties can also agree to repercussions of violating one’s conjugal rights. During a legal separation or filing for divorce, any stipulations made in the prenup can take effect. Note that the prenup will be valid if it is made and signed before the marriage proceedings, and if a minor is to be married, the prenup arrangement will have to involve the parents or guardians of the minor. In the event of a divorce, a person may have limited shares from the community property if he has acted in bad faith, committed adultery, or violated his spouse’s conjugal rights.

Conjugal rights span the companionship, attention, support, sexual relations, and joint property rights of spouses. With the presence of these rights, even married individuals who are in prison can have some private time with their spouse to keep a healthy marriage. Conjugal rights are encouraged in imprisoned individuals because it apparently helps lessen the risk of being repeat offenders. However, there are limitations to using conjugal rights. Spouses are only allowed this privilege if they are legally married. In other states, same-sex conjugal rights are still not permitted.

A marriage gives each spouse new rights and responsibilities and this includes contributing to the marriage through incomes or household duties. If a couple equally contributes to the community property, division of these assets will be easy, but if most of them are only from the fruits of labor of one spouse, then some of the interests could be granted by the court in his favor. Of course, this depends on whether there are children in the marriage and on their custody. Ideally, the one who will gain custody of the children will need more resources to live, but without children the court may grant some property to the spouse who does not have the viability to earn a substantial income after the marriage. The law covers these, but one must remember that any signed written agreement made before marriage can trump these laws, so a married individual is encouraged to hire a lawyer to read through all the documents to be signed before marriage to protect his or her rights.

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