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During the course of any marriage, but especially a longer one, a couple accumulates property, and often debt. If the couple divorces, they need to divide their property and debt. This process can be challenging for a number of reasons. Some property has great sentimental or personal value. Some types of property, like a small business, can be difficult to value accurately. And it may not be clear whether certain property is subject to division or whether it belongs to one spouse alone.
Besides all of this, dividing property is difficult because it is a tangible reminder of the breakdown of your marriage. We approach the issue of property division in divorce with sensitivity and a commitment to ensuring that you have the material resources you need to build your life after divorce.
California is one of a minority of “community property” states. Community property means that all property acquired by either spouse during the marriage and before the date of separation is the property of the community and is divided equally upon divorce. Gifts or inheritances to one spouse during the marriage are considered that spouse’s separate property, as are property and debts acquired before the marriage or after the date of separation.
The “date of separation” is the date that one spouse expresses an intention to divorce, and behaves consistently with that intention afterward. It is not necessary to file for a legal separation, or even for one spouse to move out of the house, to define the date of separation, but the intention to end the marriage should be shown by words and actions.
Whether property or debt is acquired before, during, or after the marriage is not the only issue in property division. Even if some property is clearly separate, it can become community property if shared with the other spouse. For instance, if one spouse had a car in their own name before the marriage, sold it, and deposited the proceeds in the couple’s joint bank account after marriage, those funds would become community property. On the other hand, if the spouse sold the car and used only those proceeds to buy another car during the marriage, the new car could still be considered separate property.
Property acquired by either spouse while living in a non-community property state during the marriage is called “quasi-community” property in a California divorce, and it is treated as community property. For instance, if a couple married and lived in Oregon for ten years before moving to California and ultimately divorcing, the property and debt they acquired while in Oregon would be considered quasi-community property.
To further complicate property division, some assets can be considered partly separate and partly community property. For example, if one spouse contributed to a retirement plan at work prior to marriage, and continued to contribute to that plan after marriage, the retirement plan would be partly community property and partly separate property.
California couples are encouraged to reach a settlement regarding the division of property in their divorce. If there is any dispute about whether certain property is community or separate, or the value of certain community property, your divorce attorneys may be able to help you and your spouse reach agreement. If you cannot agree, a judge will have to decide how to divide your property and debts. In that case, it is critical to have a divorce attorney with litigation experience who can present evidence in support of your position on whether property or debt is separate or community, or regarding a community asset’s value.
The more efficiently and cordially you and your spouse can divide your community property, the more resources you will have left over to create the life you want after divorce. We do everything possible to help you achieve your goals and avoid unnecessary (and costly) conflict. Our attorneys listen to your needs, explain how California law applies to the facts of your case, and explore your options with you. We prepare thoroughly for property settlement discussions and negotiate firmly and confidently on your behalf.
The great majority of the time, property settlement can be reached through negotiation or mediation. If it becomes necessary to take property division issues before a judge in your case, we have extensive litigation experience, and we won’t hesitate to go to court if doing so is in your best interest.
The property you take from your marriage provides the financial foundation for your future. We are committed to making that foundation as strong as possible. Please contact us to learn more about how we can help you.