Who Gets What in a Divorce?

In California, the divorce rate is 60%, making the state 10% higher than the national average. Going through a divorce can be overwhelming and can have consequences on all aspects of your life. Issues of property or asset division often arise during the divorce process. If you are considering a divorce or have been served with divorce papers, you may be concerned about how your assets and debts will be divided.

Our experienced attorneys at The Law Offices of Steven E. Springer can provide answers to your questions about property division during a divorce in the state of California. We can fight to protect your rights and what is yours.

Understanding Property in a California Divorce

Couples going through a divorce or legal separation need to decide how their property and debts will be divided. Under California's community property laws (Cal. Fam. Code § 2581), any asset acquired or debts incurred by the spouses during a marriage belong equally to both of them and must be divided equally during the divorce.

Therefore, property and debt division must be done in such a way that each person gets almost the same value of property, assets, and debts. A good place to start your divorce process is to make a list of all your assets and debts. You should also determine which items are community property and which are separate property. 

Ideally, a couple can come to an agreement as to how assets and debts will be divided and present that agreement to the court. However, where an agreement cannot be reached, the decision will be left up to the court.

Community Property vs. Separate Property

During the divorce and property division process, assets are categorized into the following:

Community Property

The California legislature describes community property as all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state. In essence, all property acquired during the marriage by either spouse is presumed to be equally owned by each spouse.

Separate Property

A property owned alone by one spouse before their marriage or inherited or gifted during the marriage is considered the separate property of the spouse in California. Separate property solely belongs to the spouse who owns it and won't be divided in a divorce.

Mixed Community and Separate Property (Commingling Property)

Some properties are considered mixed community and separate. Such property is referred to as commingling property. For instance, one of the spouses sold a home he or she owned before the marriage to accrue the down payment on another property after the marriage. The down payment is separate property, whereas the equity of the new home is community property.

Determining Value of Assets and Property during a Divorce

To determine the property value, the spouses generally assign a monetary value to each item, asset, or property. Appraisals may be required to determine the actual value of the property, artwork, antiques, and other valuables. Also, the couple must assign all debts incurred during the marriage, including credit card debts, car loans, and mortgages. Once a value has been assigned to each item or debt, you and your spouse can agree to divide the assets/debts or seek help from the court.

Note: Pension plans, such as a 401(k) can be considered community property if earned during the marriage and therefore should be factored into the determination of assets.

How Legal Counsel Can Help

Divorce is a complicated and emotional process. Trying to negotiate a settlement or divide assets with your ex-spouse can make the process even more difficult. Fortunately, an experienced California divorce attorney can provide the detailed guidance you need.

Our attorneys at The Law Offices of Steven E. Springer will work with all parties involved to settle matters of asset division. We will fight to negotiate a fair resolution and help make the transition process is as smooth as possible. Our team will offer you the comprehensive legal guidance and advocacy you need during this difficult phase in your life.

Contact a Divorce Attorney in San Jose, California Today

If you are considering divorce or just been served with divorce papers, call The Law Offices of Steven E. Springer today to schedule a free consultation. We will help you understand the California asset division process and fight to protect what belongs to you. We are proud to serve clients throughout San Jose, Morgan Hill, and Fremont, California.

Posted in Divorce

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