Divorce is not easy. It’s not easy emotionally and it’s certainly not easy financially. After making the already difficult decision of ending a marriage, there are a ton more decisions that need to be made, including how the marital assets that accrued during the marriage should be distributed commonly known as the division of property. In California, as outlined in Division 7 of the California Family Code, any income or assets that occurred during the marriage are considered ‘common property’.
How Is Common Property Divided During A Divorce?
Any property that came into the couples possession during the course of their marriage will be divided equally regardless of who was responsible for a majority of the investments, assets or monies. It doesn’t matter how big or how small the joint assets are – they will be distributed equally amongst you and your soon to be ex-spouse. This is why it’s important to properly categorize and have your valuables accurately appraised.
Common Examples of Marital Property in Divorce
There are two types of assets tangible and nontangible items. Common tangible items include:
- Real Estate including residential and commercial properties
- Automobiles and other vehicles such as boats and motorcycles
- Electronics such as TVs and computers
- Collectibles such as coins, art or furniture
Common nontangible items include:
- Insurance properties
- Business ventures
- Deferred and retirement income
- Joint bank accounts
- Stocks and stock options
How Do The Courts Determine Which Property Goes To Who?
While we know that property and assets will be distributed equally, there are certain things that can’t be divided – such as tangible property. A common misconception is that marital property is divided based on which party’s name is on the title of ownership. For example, the husband’s name is on the title of ownership of a car. This does not mean that the husband will automatically be given the car while distributing the property during divorce. If the wife drives the car and uses the car to contribute to the household, she might have the right to be awarded the car in the divorce.
Unless there is an affidavit specifically written during the acquisition of specific property during the marriage that indicates that it belongs to a specific spouse, that property will be considered jointly owned. If you wish to keep the property separate, at no time can the property or asset be joined with the marital assets. It must be maintained and titled separately. This is why having an experienced property division lawyers will be beneficial because they can be an advocate on your behalf to make sure that you get the property that you want and deserve.
What Is Not Included In The Division Of Assets?
The are some forms of property and assets that will not be divided in the divorce process. It depends on the time of acquisition meaning any assets or properties that were acquired before the marriage or after separation may be excluded from the division of assets during the divorce proceedings. Also the manner in which the assets were obtained. Assets such as disability benefits and inheritances will be given to the spouse in which it was intended for. For example, if the husband’s father dies and leaves his inheritance to the husband while dividing the assets during the divorce proceedings, the husband is entitled to the inheritance even if it was used during the marriage.
How Does A Pre-Nuptial Agreement Affect The Distribution of Assets?
Even though California is a community property state, a premarital agreement allows you to predefine how the assets will be divisible in the event of a divorce or dissolution of
marriage. For all intents and purposes, a premarital agreement can “override” so-called community property. Any skilled family law attorney will be able to create a prenuptial agreement to ensure that all of your hard earned money and any assets obtained during the marriage remain yours.
Are Debts Part of the Division of Assets?
Yes. Debts such as mortgages, car loans, and credit cards will be distributed during the divorce proceedings. In California, the family court judge will determine which spouse is responsible for paying which debts but will try to split the debt as evenly as possible regardless of who is responsible for the debt. However, once the debt is divided you are no longer responsible for paying those creditors. In the event that your ex-spouse fails to pay the debt that is owed, creditors are not allowed to ask you for money. If you cannot afford or if your ex-spouse cannot afford to take on these debts and they file for bankruptcy, family court-mandated payments such as child support and spousal support are not protected. You or your ex-spouse will be required to continue payments as per your divorce agreement.
Contact Our Asset and Property Division Attorneys Today
If you are going through a divorce and are worried about how your property or assets will be divided during the proceedings then contact one of our divorce attorneys. We will work with you and go through all of your assets and property to determine how it should be fairly distributed.