One of the most significant issues in any divorce is the court-ordered division of property between the parties. Here is a brief overview of some of the major issues implicated by the analysis of who gets what in a California divorce proceeding.

Community vs. Separate Property

Under California law, when a couple is married the spouses become one legal partnership, i.e., a “community”, in the eyes of the law. If they acquire property or debts during the marriage, it’s part of the “community property.” Later, if the couple decides to get a divorce, the community property will be divided equally between the spouses. In other words, all community property will be split in half.

Community Property includes both physical assets, such as a home, vehicles, bank accounts, etc., as well as deferred compensation, such as pension plans, 401ks, and stock plans, acquired during the marriage. Community property also includes debts either party incurred during the marriage. Each domestic partner or spouse is equally responsible for debts accumulated during the partnership or marriage. This is true even if only one partner incurred the debt. This is also generally true if the debt was incurred by a partner using a bank account or credit card only in that person’s name.

Conversely, all property acquired prior to marriage, or after separation, is the acquiring partner’s separate property. Some examples of separate property include, but are not limited to:

• Student loans;

• Property acquired while one or both spouses were living separate and apart;

• Any property acquired using separate property (funds);

• And any property acquired after the couple’s date of separation.

Commingling

Problems arise when “community” and “separate” property become mixed, or “commingled.” For example, consider the scenario where one spouse owned a home before getting married, but decided to sell the home so he or she could use that money to make a down payment on a new home with their new spouse. In this common scenario, the down payment would be separate property. The mortgage payments are made with money earned by both spouses while they are married. Consequently, the equity on the home is now a commingling of separate and community property. Once you commingle your assets, they will become community property.

When commingling issues arise, courts inquire into whether it is possible to “trace” the separate property back to the original owner so that it can be returned to the separate property owner.

Valuation

The value of assets can also be an issue. Property and assets may be difficult to value, and when the couple does not agree on the value of a specific item, the process of dividing property can drag on. In some cases, expert testimony may be required to determine the value of marital property.

The Separation Date

Another problem is determining separation date. The date of separation means the date that a complete and final break in the marital relationship has occurred. This is typically evidenced by one spouse expressing to the other spouse that they want a divorce and by conduct of that spouse that is consistent with his or her intent to end the marriage.

Determining the separation date is important because any property acquired after the separation date would be considered the separate property of the acquiring partner.

You should consult an experienced attorney to discuss these complex areas of law if the issues are expected to surface in your case. We can assist in locating such an attorney, as we frequently work with counsel if and when the need becomes apparent.

With over 12 years of hands-on experience, we can also handle all the paperwork necessary for you to obtain your divorce decree. Give us a call us at 888-441-2355. Our experienced professionals are standing by to answer any questions you may have or if you are ready to start a case.