When married couples file for divorce in California, part of the divorce proceedings includes the division of property, as well as the debts owed, between the two individuals. The court will confirm a decision on these issues with a formal court order. Until a judge issues a court order, the two parties still share joint ownership of all property and debt, even if the two individuals agreed on how to divide their assets and have already separated. This is true regardless of who is in possession of the property or who is using the property. The same applies to debts.
Property is defined as anything that can be bought or sold and has value, such as real estate, cars, or furniture. This also includes financial accounts like bank accounts, stocks, 401(k)s, and pensions.
When the divorcing individuals can agree about property division, they do not have to go to court and can usually get a judge’s formal order of approval on the agreed terms without a hearing. It is when there is a dispute between the parties that they must go to trial or have a hearing in front of a judge to make a final decision on their behalf.
Two Categories of Property
There are two different categories of property under California property law. These two classifications are separate property and community property. Generally, separate property remains separate, and community property is divided between the two parties. Community property is what the two individuals owned or owed together during their marriage. Separate property includes:
- Property that was owned or owed prior to the marriage and after separation
- Any gifts that were inherited individually
- Property neither party earned, even if it was received during the marriage
The Date of Separation Rule
If there is a question about property after separation, the date of separation is important. This can sometimes be difficult to determine, but California law states that the date of separation is the day that one of the two individuals in a marriage indicated by action or verbally that they wished to end the marriage. After that day, one of the two exhibited actions consistent with the wish to end the union. This might be the day that one party moved out of the shared residence, or it could be the day the two individuals agreed to separate or divorce. Therefore, anything either party earned, or any debt they incurred after that date of separation, is not considered community property.
Property that is both separate and community is called commingling. Commingling property is property that gets mixed together during a marriage. It is often a result of big purchases, retirement plans, or joint bank accounts. An example would be the down payment for a home that was paid by both parties with money they earned prior to marriage, but the subsequent mortgage payments they made on the home came from money they earned during their marriage. Thus, the equity in the home is part community and part separate property.
A judge will typically keep separate property separate while dividing community property equally, unless the two parties have otherwise mutually agreed on some other arrangement. If there are significant discrepancies between the two parties, a qualified family law attorney can advise and suggest a compromise or means of agreement. Furthermore, an experienced lawyer can explain the law as it relates to the unique situations that divorcees face regarding property division. Many times, the court makes the decision for them.
If any of the following applies to your situation, you are advised to speak to a lawyer, even if you and your spouse seem to agree on everything. Consult a lawyer if:
- You cannot agree on how to divide a home or business you own.
- You have a significant amount of debt, or you’re facing bankruptcy.
- You have a prenuptial or postnuptial contract.
- Your spouse incurred debt by means of such unknown acts as:
- Gambling
- Purchasing something for someone else unbeknownst to you
- Using community property for a relationship with someone else
- Either party has a retirement plan, particularly a pension.
FAQs
Q: How Is Real Estate Divided in Divorce in California?
A: In general, each spouse is entitled to a 50% share of all marital (or community) property. In the case of commingling property, one solution is to sell the property and divide the proceeds between the two individuals according to the percentage ratio of separate and community ownership. This requires valid proof of the percentage of separate and community ownership. Otherwise, the property is treated as community, depending on the value of the separate versus community ownership amounts and the length of the marriage, among other potential factors.
Q: What Is the 10-Year Rule in California?
A: California is one of the few places that awards the advantage of spousal support when a marriage lasts for at least 10 years. In a divorce, the spouse in a marriage of 10 years or more with the lower income has the right to receive alimony payments as long as it is necessary and the paying party can afford to pay.
Q: If an Individual Gets Remarried, Do They Still Get Alimony?
A: No. In California, an obligation to continue to pay alimony to a former spouse automatically ends when the supported spouse remarries. No court action is required, nor does a motion need to be filed with the family court. They can just stop paying. On the other hand, if the paying spouse remarries, they must still continue paying alimony if the court ordered them to. To discontinue making alimony payments, a modification of the original court order would be needed, as well as proof that the supported spouse can support themselves financially or that the paying spouse can no longer afford the alimony payment amount.
Q: What Is Each Spouse Entitled to in a Divorce?
A: In a divorce that does not involve children or require spousal support, all property earned by either party during the marriage is split 50/50, according to California law. However, if child support or alimony is required, a judge can order the paying spouse to pay as much as 40% of their income if they do not have primary child custody. This is in addition to the 50/50 split of community property.
Consult a Family Law Attorney Experienced in Property Division
Whether the subject of property division among spouses sparks tension or not, it is always recommended that you consult a knowledgeable attorney to determine where California law applies. The Law Offices of Patricia A. Rigdon offers mediation and litigation services. Enlist the help of a reliable family law attorney and contact us today.
