Division of Property

Divorce - division of property in California

It is bad enough that the marriage has ended. You feel defeated-like a failure. It is hard to see now that you will recover from this divorce.

To add insult to injury, you now have to divide your house and your stuff. You worked hard for what you have. Who gets what? Do you even have any say in what you will get to keep? Will you be able to keep the house?

Can you force your spouse to sell it? What happens to the pension and the student loans? The thought of having to move is overwhelming.

You need someone who has been through the process before to sort this all out. Below is some information to help you understand the laws surrounding California property.

In a California divorce, the parties always have the ability to agree to a fair property settlement without the necessity of litigation.

However, if the parties cannot agree on their own, the court will make orders to divide the property according to California state law.
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The different types of property

Community property– Absent a written agreement, the law requires an equal division of the community estate. For the most part, in California, property acquired from the date of marriage until the date of separation is community property. Community property is an asset earned during the marriage through time, effort or skill during marriage. It is divided equally during a divorce unless there is a written agreement to some other arrangement.

Gifts and Inheritance
Unless a gift or inheritance was given jointly to both parties, it will be awarded as the sole and separate asset of the person who received it. This is because gifts and inheritance are not earned through time, effort or skill, and are, therefore, not community property.

Per Capita Income
Money received from an Indian Reservation for being the member of a particular tribe is the sole and separate asset of the person who received it. Anything purchased with that money is the sole and separate asset of that person. This is because the money is not earned using time, effort or skill. It is earned as a result of one’s heritage.

Community Debt
Like assets, almost all debts acquired during the marriage are community and are divided equally.

Retirement Benefits
When a married person accumulates an interest in a pension, retirement, profit sharing, or other employee benefit plan during the marriage, the part accumulated during the marriage is community property. In California, the retirement or pension plan is then divided using a court order called a Qualified Domestic Relations Order (QDRO). A QDRO is a set of instructions that helps determine how much money is to be paid to each party.

Military Retirement
There are separate rules for military retirement. Federal law does not recognize a spouse’s right to receive military retirement unless the parties were married for ten years or more.

Family Residence
Where minor children are involved, the primary parent may be allowed to remain in the marital home. This can be done by delaying the sale of the home or structuring a property settlement to award the house to the primary parent. One common settlement term is to allow both spouses to remain on title until the youngest child graduates from high school. Later, the house can be sold and the profits split equally.

Separate Property
Separate property is anything acquired by a spouse before the marriage, during the marriage by gift, devise, or bequest, and after the parties separate. It is awarded to the spouse who owns it.

Separate Debts
Debts incurred during the marriage are usually equally divided. They are divided to the person who incurred them. Debts accumulated after the date of separation are awarded to the party who incurred them. Similarly, after separation of the parties, the earnings and accumulations of each party are the separate property of the party who earned the asset.

Student Loans
While most debts accumulated during the marriage are the joint obligation of both spouses, student loans are the exception. They are the separate obligation of the person who incurred them. Unless the spouses co-signed for the debt, a student loan will be the obligation of only one party.

Disclaimer: The above rules are merely generalities and should not be construed as legal advice and should not be acted upon or relied upon in any way. If you have specific questions about any of the above, please call our office for more information.

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Divorce - Who Stays in the Home?

Your spouse has threatened to divorce you many times before. You have often thought about it yourself. However, every time the prospect came up, you realized how much you have to lose. You have worked hard to achieve safety and security. The inevitable is now happening and the divorce is real. You and your spouse are separating.

Fear has begun to set in. You wonder, what is going to happen to me now? How am I going to make ends meet? What is going to happen to everything I worked for my whole life? You also feel guilty over how the divorce is going to affect the children. How are they going to handle the divorce? Will they be scarred for life?

Frequently, couples who are going through a divorce worry about what is going to happen to their most valuable asset- their family home. Usually, the parent who is hoping to get primary custody of the children wants to stay in the home. Parents rarely want their children to suffer because of their mistakes. Most parents believe it is best if the children experience minimal disruption after the divorce.

Owning a home is part of the American dream. Many people feel that homeownership is a sign of personal and financial success. The family home is not only an asset, it represents financial security and a sense of self-worth. The family home becomes part of one’s identity.

Most people become emotionally attached to their home. Having to face the prospect of divorce, coupled with the prospect of losing one’s home and uprooting the children is frequently more change than one can take. For this reason, the goal in a divorce is often to stay in the family home.

Whether or not you will be able to stay in the house depends upon a variety of factors. Some of them are listed below. If you are going through a divorce and hope to remain in your home as part of the settlement, one of the most important factors will be whether the home was bought during the marriage.

If your spouse bought the home before you were married, it may be more difficult to receive the home as part of the property settlement. A list of the factors that are looked at when deciding who will remain in the home are:
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Oftentimes, your attorney will be able to help negotiate a fair settlement that includes remaining in the home. 

This could be by coming up with a creative solution in the divorce settlement, negotiating a delay in the sale date of the home, or helping the client find money in the divorce to buy the other party out. 

If you are going through a divorce and are interested in saving the family home, we will work together with you to help you achieve this goal. For more information, please call our office or email us. We are here to help.