When a couple gets a divorce, all the property from the marriage must be sorted out by the courts. Among the many issues the court must confront in a divorce case, a universal one is property division, specifically California property division.
No divorcing spouse should proceed without the guidance of a licensed Family Law attorney. Property division laws can be complex, vary from state to state and lawyers have the proper training and experience to tell the judge what a divorcing spouse wants or needs from the property division.
Property Division Divorce Laws in California
The purpose of California property division laws is to make sure that California marital property is allocated equally to each spouse, generally in a 50-50 split. If a 50-50 division would not be equitable, the courts may choose to divide the California divorce property in a more equitable fashion as permitted under California case law.
California is a community property state. This means that with regard to California divorce assets, each spouse has a ½ vested interest in the property of the other spouse that should be considered in dividing California divorce assets or California divorce property. The only property that does not come into the court's distribution is that which is listed as an exception outside of California Family Code §760.
What is Considered Marital and Non-Marital Property?
California marital property is defined under California Family Code §760 as “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state.” Property acquired during the marriage is presumed to be community property unless proven otherwise.
Non-marital property is any property specifically defined in another statute as not being community property. One example is any “earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse” per California Family Code §771.
Dividing Assets and Debt
After the court decides which property is available for distribution, the next step is property valuation. The last step is either a 50-50 division or property or the most equitable division as determined by the California trial court.
Judges decide how a marriage's assets should be divided based on numerous factors. Here is a list of the most common property items and the most common allocation scheme used.
- Cash: Divided equally among the spouses.
- Example 1: A joint savings account has $8,000. The court would most likely award $4,000 to each spouse.
- Example 2: A joint savings account has $8,000. One spouse contributed $3,000 and the other contributed $5,000. The amount will be divided equally or based on the court's determination that one spouse would not be treated fairly under a 50-50 split.
- Retirement Plans: The amount accrued
during the marriage is divided equally.
- Example 1: A spouse got benefits in a military retirement plan after working for 25 years and was married for 20 of those years. The trial court can't touch this plan since federal law preempts state law on this issue.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it but the other has a community property interest that may or may not be subject to the property division.
- Vehicles: Divided based on the values as
determined by the court. May be sold or
given to a spouse outright.
- Example 1: A boat was acquired during the marriage. The boat will most likely be sold with proceeds divided 50-50 or the boat may be given to a poorer spouse based on the court's discretion.
- Example 2: A car has a shared title. The car may be sold with the proceeds in a 50-50 split or given to a poorer spouse if a 50-50 split would be unfair.
- Insurance: The portion paid for or
acquired during the marriage is divided equally between the spouses.
- Example 1: One spouse has covered the other under employer health insurance. The other spouse is in poor health. The court may require continued coverage or a cash payment for the ailing spouse to get new coverage.
- Example 2: One spouse has a life insurance policy where premiums were paid out of that spouse's salary. The proceeds of the life insurance will be classified as community property and subject to the court's property division.
Settling Disputes in a Divorce Case with Property and Asset Division
A spouse who is not receiving cooperation in property division or is unhappy with a particular portion of the order may go back to court to seek enforcement or modification of the order. The trial court will then decide how to proceed.
The trial court has great latitude in making decisions on property division and appellate courts will not change the order unless there is no substantial evidence to support the trial court's determinations. This is very difficult to prove.
Help From a California Property Divorce Lawyer
Retaining a California property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.