The divorce process can be very tricky to navigate, especially regarding asset division. Dividing property can cause problems between spouses, especially in more tense, contested divorces. Understanding how California classifies marital property and facilitates asset division is essential before any divorce mediation.
Is California a Shared Property State?
California is considered a community property state. This means that both spouses are typically considered to have equal ownership of any property obtained during their marriage, purchased by either spouse, unless otherwise noted. Family Code Section 2550 states that the joint estate should be divided equally between both parties. When it comes time to distribute the possessions and properties, all of the assets that were part of the estate at the time of divorce are split. The Court must ensure an exact 50/50 division of the shared assets and debts.
Before any property is given to either party, the value of each asset is listed and provided to the court with a Preliminary Declarations of Disclosure. For some pieces of property, primarily real estate, if both parties disagree on the value of an asset, an appraiser can be contacted to determine the actual value of that asset. From there, the assets are divided depending on whether both parties can agree on which assets they want to retain. In contested cases, both parties disagree on the presented terms of the divorce, including asset division, requiring the court to intervene to settle the case.
What Counts as Community Property?
Cars, vacation homes, bank accounts, and even pets are divided this way, including systems like child support, child custody, or spousal support, if applicable. Depending on the asset’s value, dividing shared property can be bargained to retain certain pieces of property in exchange for others. Some of the most common assets considered community property include:
- Real Estate. Depending on when the home was purchased, real estate property can be considered community property. In some circumstances, if it can be proven to the court that a spouse purchased the home before marriage, it can be considered separate property. However, its value will be divided if this cannot be proven. Typically, an appraiser will put a value on a shared home. Once it is sold, both spouses will receive an even split of that amount.
- Cars. Cars, much like houses, are considered community property unless noted otherwise. Because these assets cannot be physically split between both parties, if any vehicles are not given to either spouse, they will be appraised and sold, then the profits from that sale will be divided between both parties.
- Retirement accounts. Because pension plans are considered joint property, they will be divided during a divorce. For those aiming for an uncontested divorce, negotiations between both parties can include trading assets to make up the retirement account’s value. This allows the person who contributed to the account to retain their earnings by relinquishing other assets.
- Debts. Debt is not generally distributed evenly, unlike marital property. Each partner is responsible for repaying the obligations allocated to them as part of the conditions of their divorce settlement. Creditors may pursue a spouse for unpaid assigned debts if they do not make the required payments on time. For example, if one spouse incurs a large debt because of gambling, they would be expected to pay this off, and it would not be split.
For some pieces of property, using a prenuptial or postnuptial agreement can determine which spouse receives what assets, regardless of mediation. For example, if a prenuptial agreement is signed by both spouses stating that one will retain ownership of a specific vacation property, it will go into effect during the divorce. However, any property not listed in these agreements will be divided 50/50.
Q: How is property split in a divorce in California?
A: Generally speaking, in the event of a divorce, each party should get 50% of the community estate. The court must still decide whether a settlement is fair and reasonable even if the parties agree on how their assets and debts are divided. The judge will likely approve such an arrangement if both parties have attorneys. However, if the couple cannot agree on how to divide their communal property, the court will decide for them.
Q: How much is my spouse entitled to in a divorce in California?
A: In California, a spouse may be entitled to spousal support, child support, and sole custody in addition to up to half of the marital property and up to 40% of the husband’s income. The amount of money the partner makes, how long they have been married, and other factors will affect what the wife is entitled to.
Q: Who gets to stay in the house during a divorce in California?
A: Both spouses own a portion of the marital house if purchased during the marriage. This implies that the spouses have an equal right to live in the same place during the breakup. If one spouse owned the house before the marriage was official or inherited the house from a relative, they could ask the court to recognize this as separate property.
Q: Is everything split 50/50 in a divorce in California?
A: The default guidelines for a California divorce are the community property laws, creating a 50/50 split. That does not imply that the parties must follow those guidelines. Before getting married, parties might agree to a prenuptial agreement that specifies what assets and income belong to whom. The parties to a divorce can discuss and come to a property distribution agreement that divides property differently than 50/50.
Finding Counsel for Asset Division
When deciding which spouse gets what marital property, having legal representation is critical for mediation. With legal counsel, those seeking to retain certain assets can create a solid and compelling case needed to convince a judge of this position. For those in Santa Barbara, Drury Pullen, A Professional Law Corporation, can help. To get started on a consultation, visit our website and contact us today.