Dividing Property In a California Divorce. Is Everything Split 50/50 In a Divorce in California?
Why is Community Property important?
Generally, anything that the Court determines to be community property or community debts are divided equitably in a California divorce. Read on to better understand how living in a community property state could impact your divorce in California.
There are nine community property states in the U.S., and California is a community property state.
Here, there is a presumption that property, debts, and other assets acquired by a married couple during the marriage are community assets. In plain language, community property is assets and debts acquired that each spouse owns an equal, one-half interest in.
Most assets acquired during a marriage are considered community property, and that property is divided equally during a divorce. If the couple does not agree to equitable division, a judicial officer, such as a Judge or Court Commissioner, is tasked with the split of assets.
If all of our property was obtained during our marriage, does that make it community property?
Generally speaking, yes. However, in certain cases, some property can be only one spouse’s asset alone, called separate property. This is true even if it was obtained during the marriage.
Separate property is a property that is not subject to division by a judicial officer. It is a property that is either gifted, inherited, or obtained either before the couple was married or after the date of separation from their spouse.
Gifts and inheritances received during the marriage are considered separate property according to California Law.
Property acquired during the marriage is presumed community, but what if there is a dispute What if one spouse used funds from the sale of a house they owned before the couple was married? Or what if your spouse’s family member helped with a down payment and said at the time that it was a gift to both of you but is now claiming it was only a gift to your spouse?
When there is a dispute about the characterization of property, the situation becomes complicated, and it is important to get a divorce attorney involved to help with splitting assets.
California divorce law addresses disputes by establishing what are called “presumptions” within community property laws.
A presumption means that the judicial officer must assume an asset is or is not community property and will follow the presumptions when dividing marital property unless evidence is provided to “rebut” the presumptions.
This places a burden on one spouse to prove how an asset or debt should be characterized during the divorce. Generally, the law places a presumption on a spouse with separate property to keep adequate records showing that the asset was either paid for with separate funds or inherited.
This means that if you claim the asset is not joint property, you must provide tracing on that asset to prove why it should not be considered marital property as part of the property division.
How can I PROVE THE ASSET IS NOT a COMMUNITY?
If you used your separate money when you acquired an asset during the marriage, it is called commingling. Once an asset is comingled, it needs to be traced back to the source. Records from bank accounts, wire transfers, title documents, and other records must be produced to show where funds came from to buy an asset
If you have real property, like a house, you can trace this by providing the Court with a chain of title showing that the property is in your name.
Similarly, providing a statement of the funds in your bank or retirement accounts from before and after you were married can help establish the cash assets, which can help attorneys, financial experts, and the judicial officer what cash assets are your separate property that it will not be split per a community property standard.
What happens if assets are comingled?
In a California divorce, the law has rules to make a fair division of property and debt acquired. Sometimes this means finding that there is community interest in a separate asset or vice versa.
These situations can be complicated issues during your divorce litigation and it is best to consult with an attorney to better understand your rights and how it aligns with community property rules.
how does the LAW value our ASSETS and when is it divided?
Generally, unless there is an agreement in place (like a prenuptial or postnuptial agreement), marital property must be divided at the time of trial or final Judgment based on community property laws.
If there are disputes about the characterization of certain properties, the issue will need to be brought to trial as part of the divorce process.
In rare circumstances, assets can be divided without an agreement and before trial, but only with a showing that the asset is at risk of being lost due to negligence or intentional bad conduct of a spouse.
Assets are valued at the time of trial. This means that if an asset has decreased or increased value from the time your divorce case has been filed, the Judge will generally use the property’s fair market value at the time of trial to decide how the asset will be split.
can we agree on how to split assets?
Absolutely. While there are many laws in place to protect divorcing spouses in the division of marital assets, this serves as a protection, not as a limitation.
If you decide you want to divide property in a different way. All aspects of property division can be mutually agreed to in a divorce settlement, including child custody, child support, and spousal support.
A GOOD LAWYER IS IMPORTANT IN YOUR DIVORCE CASE
Contact the experts in family law at McKean Family Law at our law offices. We can help you get your fair share and equitable distribution of assets.
Note that this article is for general information purposes and does not create an attorney-client relationship. Each individual case will require assessment by a lawyer.