Who Gets What in a California Divorce?

Dividing assets in a divorce is one of the most complex aspects of an already emotionally, physically, and financially challenging process. Without a prenuptial agreement or a postnuptial agreement, determining who gets what can be intricate and quite intense.

California is one of nine states with community property laws regarding asset separation in a divorce. Both spouses must fully disclose all property and debts for a judge to approve the division. Understanding the distinctions between different types of property is essential in this process.

Community, Separate, and Commingled Property

• Community property is all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in California during their marriage. Additionally, any debt incurred during the marriage by either is the responsibility of both parties.
• Separate property is any asset or debt owned before the marriage, after separation, or received as a gift or inheritance during the marriage. Separate property stays with the original owner.
• Commingled property refers to separate and community property that are so mixed together that their origins are difficult to trace, potentially leading to the entire asset being treated as community property. For example, if one spouse used their income earned before marriage to make as a down payment on a house, but then during marriage both parties’ income is used to make mortgage payments. The spouse that made the down payment would have a separate property reimbursement claim but there would also be a community property interest in the house. The courts must conduct a financial tracing to determine what parts of this property are community or separate.

How are assets divided?

Several factors influence asset division in a California divorce:

• Date of Separation: The day one spouse initiates the divorce and shows actions consistent with it, such as moving out. Generally, from that day onward, the courts consider whatever either spouse earns after the separation date, as separate property.
• Equal Division: Courts try to split community property fifty-fifty between the parties. However, spousal support determinations are handled separately from asset division.
• Offset Agreements: When one spouse wants and gets a specific asset, such as the family vehicle, and the other receives a different asset of equal value to offset and equalize assets.
• Buyout Agreements: Utilized when one wants to keep an asset for themselves. They must buy out the other’s interest in the asset.

Other Considerations:

The division of assets in California is not clear and definite. Complex assets like pensions and stock options may require valuation and separation through additional court orders. Exceptions can also be a factor if an individual accumulates debt through reckless spending. Damage done by natural disasters can add another hurdle when assessing and dividing property.

Gathering financial records, openly communicating, and utilizing professional advice can help divorced couples navigate asset division equitably with minimal conflict.

Vanessa Soto Nellis and Nancy Martinez are Family Law attorneys at Lewitt Hackman. Vanessa is a California Family Law Specialist.