Many people think that property division is always 50-50 in a California divorce because of the state’s community property laws. But this is not always the case. Although it is true that divorcing spouses must evenly divide their marital property in a divorce proceeding some property is exempt from such equal division.
There are many factors that impact how a property is divided in a California divorce. Below are some of the most common.
The Difference Between Separate Property and Community Property
One of the most important factors that must be considered when dividing property in a divorce is how the property is labeled. Separate property is any asset, property, or debt that the spouse acquired before marriage or domestic partnership. Inheritances or assets that are acquired as a gift during marriage are also considered separate property.
The earnings of the separate property or increase in value are not divided in a divorce proceeding if the spouse owning the property can prove ownership with documents and financial records.
Community or marital property is any property, asset, or debt that the spouses acquire after getting married or entering a domestic partnership. Separate property can become community property in several different ways:
- The premarital bank account begins being used by both parties and/or if the spouse makes deposits into it.
- Both spouses make payments on a mortgage or other expenses.
- When both parties contribute to a retirement account, even if it was established before the marriage or domestic partnership.
- The business established before a marriage continues during the marriage with the effort of both spouses.
The Value of All Assets and Properties
If the divorcing spouses cannot agree on the value of the community property, the court will assign a monetary value to each asset or property. California law only requires that the net value of assets must be split equally. This does not mean that the actual physical division of assets must be identical.
Accumulation of Marital Debt
During a divorce, it is important to include all debts, such as car loans, credit debts and mortgages, as part of what needs to be divided. This will ensure there is an equitable division of assets and financial responsibilities. It is best to resolve all community debt before the finalization of your divorce.
Transmutation of Property and Assets
Another way to change separate property into community property during marriage is transmutation. Transmutation happens when:
- Property is gifted from one party to another
- Both parties reach an agreement about the property
- Community and property comingle
- A property is jointly titled in the names of each party
Call an Experienced Fresno Divorce Attorney
If you are in the process of getting a divorce or plan on initiating one, it is important that you have a knowledgeable attorney fighting for your rights. For more information or to schedule a complimentary consultation with a Fresno divorce attorney, please call Gurjit Srai 209-323-5558 or complete our online form.