How Community Property States Victimize Victims

A community property state is defined as: A state where all property (and typically income) acquired during the marriage is presumed to belong equally to both parties. The following states have been designated community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

A state's designation as a community property state can be a blessing or a curse. For couples who are divorcing, living in a community property state means that all assets acquired over the course of the marriage belong to both parties equally, regardless of who's wages actually paid for the purchases. The courts will take this into consideration during the finalization of the divorce and the division of the property. This is beneficial to spouses who did not work outside the home, such as stay-at-home mothers. On the other hand, all debts incurred over the course of the marriage, including back income taxes owed by one party in the marriage, become the liability of both parties.

To a victim of domestic violence, the laws of community property states present many legal challenges. If a person is being abused by their spouse, they cannot legally lock the abuser out of the shared home, regardless of who's name is on the deed. Further, it is not illegal for the abuser to gain entry to the residence by any means necessary - including breaking windows or doors. Although the Castle Doctrine, the law that allows the use of deadly force against intruders in your home, exists in some of the community property states, it does not apply to shared residences.

However, because community property law dictates that one party has just as much right to the property as the other party does, there is a caveat that some people may not be aware of because of a gray area in the law. While the community property laws allow for an abuser to break doors and windows to gain entry to the residence, the abuser cannot destroy property within the residence that both parties have a vested interest in. This is called malicious mischief and is a prosecutable crime.

In these community property states, victims of domestic violence can't get a restraining order unless or until one party moves from the residence. There are no laws in place that will forcibly remove an abuser from the home. However, if an assault occurs and the abuser is arrested, the victim is able to get an emergency protective order from the presiding judge or justice of the peace. This is a written order than bans the abuser from coming within so many feet of the victim, the residence, place of employment, and/or harassing the victim in any way. This order is able to legally keep the abuser away from the residence for a period of sixty days, giving the victim to get permanent orders put in place with the filing of divorce proceedings.

While community property states may think they're being fair and just to married couples by protecting their interests, these laws leave a lot to be desired when it comes to protecting the people who actually need it - victims of crime. Being that most states have their own interpretation of the laws, it's always prudent to check with your local authorities and county judicial system. Third party information should never be interpreted as legal advice, but it can be a great tool in educating yourself in the ways that the laws work so that you are more versed in the process to protect yourself and your interests later on.