Often with the help of an attorney knowledgeable in property division, the parties can resolve their differences and avoid court. If negotiation fails, the Law Office of David C. Watts has the experience to guide you through the process.
For more information on property division, see below.
What is mine, what is my spouse’s and what is ours together? How will this property be divided?
Taking first, the last question. The parties are free to divide their property as they wish. If the parties can agree on who gets what, the court will likely honor the agreement. If you are both competent adults, what you decide to do with your property (within reason) is your business. However, if you cannot agree, the court must divide all community property equally. This does not mean that each item must be sold, and the proceeds split. What generally happens is that each party gets certain assets and debts and a total is determined as to each party’s value. An equalizing payment is then ordered, with the party receiving more paying half the difference back to the other party to equalize what each gets.
A basic understanding of community property law will go a long way here. Simply put (as always in the law, there are exceptions) anything obtained during the marriage (asset or debt) is community property unless it was obtained by gift or inheritance.
Anything that is determined to be community property does not belong to one of the spouses alone regardless of who “earned it,” it belongs to both and must be divided upon the termination of the marriage.
Anything obtained before marriage or after the date of separation by one spouse is that spouses separate property. If the property is determined to be separate, the court will assign that property to that spouse.
The Date of Separation (or DOS) as used here is different from a Legal Separation. Here, the DOS refers to the date one party determined the marriage was over. This sets the termination date for the community estate. For example, if one party said: “I want a divorce” and moved out of the house on 1/1/2020. That date would be the DOS for purposes of the community estate. Property or debt acquired after that date would be separate property, and yes there are exceptions to this rule.
Some property will have components of both separate and community property. If that is the case, the separate property portion will be allocated to that spouse and the community portion will be divided.
For example, a retirement account may have been started and contributions made to it before marriage. That amount would be that spouses separate property. However, contributions that were made during the marriage would likely be made with community earnings. As such, the account contains both a separate property component and a community component. Upon dissolution, the court will assign the separate property portion to the proper party and will divide equally the community portion.
Examples of property commonly dealt with are as follows: