Whether you are just considering a divorce, starting the process or right in the middle of it, at some point you are going to wonder if you are getting a fair shake. An attorney can look at your particular assets and debts and tell you the best plan for you, but this article will provide general information about the landscape of asset division in California and educate you to ask the right questions about the facts of your case.
- Why do I need to care about community property vs. separate property?
In general, California law requires community property to be split between the spouses 50/50, whereas separate property may be retained solely by the spouse who owns the separate property.
- What is Community Property?
California Family Code provides the general definition of community property: “Except as otherwise provided by statute, all property, real or personal, wherever situation, acquired by a married person during the marriage while domiciled in this state is community property.”
- What is Separate Property?
California Family Code defines separate property in several sections, but the section that is broadest is as follows: Separate property of a married person includes the following: 1) all property owned by the person before marriage, 2) all property acquired by the person after marriage by gift, bequest, devise or descent, 3) the rents, issues, and profits of the property described in this section.
- Commingled funds make characterization challenging:
Commingling is where both separate property and community property have been combined in such a way that the character of the property isn’t clearly apparent upon first analysis. For example:
- Down payment or loan money for the purchase of a home came from a gift to only one spouse, but community property funds have been used to pay mortgage.
- A premarital bank account from one spouse is used by both spouses after the marriage, so it contains both pre-marriage separate property and community property funds.
These are just a few examples of the myriad of ways that funds can be commingled. The process of sorting these out through tracing, etc. is beyond the scope of this article, but advice from an experienced family law attorney can assist in identifying and proving the proper character of commingled assets.
- Determining the value of assets?
A key issue in fair division of assets is assessing the value of an asset. This can be challenging for some assets, but thinking through how the value of each item will be assessed is an important step in making sure you are getting a fair division.
- Don’t forget about debts.
The focus of this article has been assets, but don’t forget to calculate in the value of your debts. For example, a mortgage on real property, school loans, and credit card debt should never be left out of the analysis.
This is just the tip of the iceberg to get you thinking through issues relating to identifying community property and assessing its value. The division of money and time with the children are the two most important issues facing many couples in divorce, so a thorough analysis of these issues by an experienced family law attorney will help you understand the law and achieve a fair resolution.
