Dividing up property is a necessary task in any California divorce. Property includes real property such as the family home, and personal property like bank accounts, cars, and home furnishings.
There are three basic steps to the process of dividing up property in a California divorce proceeding. The first step involves classifying the property as community or separate. The second step is to determine the value of the property. The third step is arriving at a mutually acceptable method of dividing the community property with the objective of each party receiving his or her equal share.
How to Determine Whether Property Is Community Or Separate
Generally speaking, community property is property acquired by one or both spouses during the marriage, unless acquired by gift or inheritance. This means the community property is owned equally by the respective spouses. Property one spouse owned alone, before the marriage, or acquired by gift or inheritance during the marriage, is that spouse’s separate property in California.
Many types of assets can be partially community and partially separate property, including retirement accounts one spouse contributed to both before and after the marriage, or a business one spouse started before marriage and continued operating after marriage. Deciding which property is community and which property is separate is significant because community property is divided equally between the spouses, whereas separate property is owned by the spouse who acquired it.
Determining Property Value
The spouses—or the court if they can’t agree—generally assign a monetary value to each item of property. Appraisals are typically used to determine the value of real property and items like antiques or artwork. Once you assign a value to your property, you and your spouse will either agree to split the asset if possible, or the court will do it for you.
Spouses can also divide assets by assigning certain items to each spouse, by allowing one spouse to “buy out” the other’s share of an asset, or by selling assets and dividing the proceeds. The couple must also assign all debts accrued during the marriage, including mortgages, car loans, and credit card debts, to one of the spouses.
Dividing The Family Home in a California Divorce
If the family home is entirely community property, spouses usually sell the family home and divide the net proceeds. Alternatively, one spouse can buy out the other spouse’s community property interest. The buyout usually includes payment of one-half of the equity to the other spouse and a modification of the loan to remove the bought-out spouse from the mortgage. The bought-out spouse then signs a deed that transfers his or her interest to the other spouse.
This procedure gives each spouse his or her one-half of the community property equity, and removes the selling spouse from the mortgage so that the bought-out spouse is no longer responsible for paying the mortgage on the home. Spouses typically hire an appraiser to determine the value of the home. A joint appraiser may be utilized, or each spouse can have their own, appraiser.
It is important to note that you and your spouse can agree on the division of property, thereby minimizing court involvement. While the court still has the final decision regarding your property division agreement with your spouse, a judge rarely refuses to sign a judgment on the division of property that the parties have agreed upon as long as full disclosures have been made.
Lynx has extensive experience with the documentation that needs to be prepared and filed in a divorce proceeding. Using our services will save you thousands of dollars in attorney’s fees you otherwise would have spent to complete the process. Please contact us at 888-441-2355 or email@example.com with any questions or if you would like to start a case.