The regulations governing the division of marital property in divorce differ from state to state. California is one of just a few states that adheres to the “common property” principle. Unless there is a prenuptial or postnuptial agreement that indicates otherwise, all assets and income obtained during a marriage are considered “community property” in California and are therefore owned equally by both spouses.

Officially, both spouses have equal rights to their marital property: they each own half of it, regardless of who made the money or whose name is on the title. However, this does not imply that a divorcing spouse must share their assets equally. On the contrary, as long as the arrangement is equitable, the couple has the right to diverge from the 50/50 paradigm.

Separate Property and Community Property

When a couple is unable to reach an agreement on property partition, a judge is called upon to intervene. If a judge is required to make a decision, he or she will divide the couple’s marital assets evenly in accordance with California’s community property laws.

Only the marital or community property is divided when a couple’s assets are divided in a divorce; separate property is not shared in a divorce. Separate property, in general, includes:

• Property obtained before to the marriage by one of the spouses.
• During the marriage, one spouse receives gifts.
• During the marriage, one partner only receives inheritances.
• During the marriage, property was purchased with or swapped for independent property.

Actually, it is commonplace for couples to convert or commingle separate property with community property, thus incorporating the separate property into the marital estate. Spouses frequently do this unintentionally or because they are careless. If a spouse receives an inheritance and deposits it into the couple’s shared bank account, the inheritance becomes marital property (community property).

Furthermore, if a spouse possesses separate property prior to the marriage, any rise in value is considered marital property. Let’s say Anne’s home in Northridge was worth $900,000 when she married Jim, but by the time they separated, it had tripled in value to $1.5 million. In that situation, Anne owns the $900,000 home outright, but the $600,000 rise in value over the course of the couple’s 10-year marriage is community property, and Jim is entitled to half of it, or $300,000.

By signing a prenuptial or postnuptial agreement, a couple can ensure that their distinct property remains completely separate. It’s also worth noting that a spouse can transform separate property into community property by having their spouse become a joint owner. The spouse who previously owned the property is signaling that he or she plans to give it to their spouse through marriage by doing so.

It can get very complicated for high-net-worth couples who do not have prenuptial agreements, especially if they had significant assets prior to the marriage and commingled funds, or if they have real estate in other states, or if they have restricted stock, or retirement accounts, or any combination of the above. We urge that financial professionals such as CPAs, actuaries, and forensic accountants be added to the divorce team in complex matters like these.

Splitting Up Community Property

There are various options for dividing a marital estate, and the more the assets, the more imaginative and intricate the solution may be. The assets of a couple can be divided by selling their home. A spouse with a business stake may choose to buy out their spouse’s share of the company by giving them more money in their retirement account or a larger portion of the revenues from the sale of the couple’s marital home.

Should the house is a multiple family dwelling, they can agree to keep owning it and renting it out, so becoming co-owners of the property; nevertheless, most individuals find this arrangement unworkable. The same can be said for a business, but not everyone is able to divorce their spouse and continue to run a business with them on a daily basis.

Other couples may choose to remain co-owners of a home so that their children can continue to grow up there, especially if it is financially feasible. In most circumstances, however, this is not the best option, as few couples want the burden of a mortgage related to their ex to remain on their credit.

We Will Advocate On Your Behalf

It’s critical to obtain the advice of an expert divorce attorney if you have any measurable assets. Unfortunately, one of the blunders that separating couples make is allowing their spouse to take everything, or allowing their spouse to walk away with the lion’s share of the marital estate, because they just want to wash their hands of the marriage, or because they feel guilty about the divorce.

Divorce is an intensely emotional experience that can lead even the most sensible people to make stupid judgments, particularly when it comes to property split. Remember that you have a legal right to half of the marital property, even if you did not contribute to it (unless you have a prenuptial or postnuptial agreement that states otherwise).

It is possible that you are entitled to far more than you believe or believe you deserve. Allowing oneself to get the short end of the stick is not a good idea. Instead, contact Spodek Law Group for the knowledgeable and compassionate legal help you need.