Property Division In a California Divorce
According to the State of California, a couple seeking a divorce is allowed to lay down their own agreements and divide their property. As long as the agreement is reasonable and fair enough, courts generally accept it without questions. But if they are unable to do so, a court of law may decide for them through a judge or an arbitrator.
There are a few important notes you have to keep in mind while dealing with property in the case of a divorce in California. If you are aware of these points and processes, it will definitely help you in splitting property fairly and equally.
Community Property Or Separate Property?
Community property is any property that the couple accumulates in a joint form from the date of their marriage to the day their marriage is cut off. Unless both parties signed a written agreement saying a property is a separate property, the court presumes that it is community property. This also includes all earnings during the marriage and any property purchased using those earnings.
Separate property is any property that a spouse has owned before the marriage, or any gift or inheritance given specifically to one party during a marriage. It can also include any item that is bought with or exchanged for a separate property, as long as there is written proof.
Any property that is acquired before a divorce, but after separation is also considered a separate property. It is also possible for a couple to change a separate property into community, and vice versa. But make sure that there are written documents which clearly state the reasons and intentions of doing so.
Determining & Agreeing On Property Value
If a couple cannot come to an agreement on a property, the court will distribute it equally to both parties. From the total current market value of the community property or asset, subtract joint obligations of both parties involved. This will give the net community estate, which must be split equally, each spouse receiving one half. This is the procedure unless there is a special agreement made.
Agreement On Division Of Property
Both parties can divide properties and assets by agreeing to assign involved items to each spouse. They can also buy out or purchase the other person’s share, or agree to sell their community property and divide the money between themselves. Although less common and few desire it, a community property can be shared between two parties even after a divorce. Most couples, especially those who prefer not keep in touch, opt out of this as it requires them to continue a common financial affiliation.
If there are children involved, sometimes the parent with primary custody is allowed to live in the family home and take care of the children. If this is the case, the one who lives here usually pays the taxes, mortgage and insurance. But if he/she does not afford it and the other spouse has a significantly higher income, then they may be required to make these payments. The house can later be sold when the children can take care of themselves, unless there is another agreement.
Retirement & Pension Accounts
If either of the spouses acquires monetary profit whether in retirement, pension profit sharing, or any other benefit plan during the time of their marriage, then that is considered as community property.
Retirement benefits can be divided into two categories – defined contribution plans and defined benefit plans. On the other hand, pension plans can be divided either by reservation of jurisdiction or through a cash-out.
Shulman Family Law Group
Maya Shulman, Esq.