How is property divided in a California divorce?
It is important to understand the laws surrounding property division when going through a divorce. Property division is often one of the most complicated aspects of divorce, causing stress and sometimes fear over what a financial future may look like.
Community and separate property
California is a community property state. This generally means that all property acquired by you and your spouse during the marriage is presumed to be community property and divided equally.
Examples of community property include real estate, personal property, retirement accounts, bank accounts and debts.
Property acquired prior to the marriage is separate property and does not get divided in divorce. Gifts, inheritances and any settlements received from lawsuits, such as a personal injury lawsuit, are also separate property.
Separate property can become community property and be subject to division if it comingles, or mixes, with marital property.
For example, if you receive a personal injury settlement for an accident that only you were involved in, but you deposit the funds into a bank account jointly titled with your spouse, the settlement funds are now community property and must be split in divorce.
Why the date of separation is important
Community property only accumulates until your date of separation. Typically, any property acquired after your date of separation is separate property, even if divorce is still pending or has not been filed yet.
The date of separation is generally defined as the date that one spouse states that the marriage is over and acts in a way demonstrating the end of the marriage, such as moving out of the marital home.
Debts are treated the same as property. Debts acquired during the marriage are considered community debts and must be split, while debts incurred prior to marriage or after the date of separation remain the debt of the spouse who holds the debt.
The equal split of community property can feel frustrating if you feel that you should receive a higher share due to certain circumstances.
Does the court ever order an unequal split?
Although community property law states that community property must be equally split, there are factors a court can consider when deciding if an unequal split would result in a fairer outcome.
One factor is the separate income or assets of each spouse. Using the personal injury settlement example from above, if your spouse receives a six-figure settlement and keeps it as separate property, a court may award you a higher share of community property to balance the scales.
Another factor is the length of your marriage. Marriages less than 10 years are normally considered short-term marriages. A court might order an unequal split in a short-term to achieve a fair outcome, using the rationale that couples in a short-term marriage have not had enough time to accumulate much community property.
It is not necessary for a court to decide how you divide your property. You and your spouse can create your own agreement. However, a court will review the agreement to verify that it is fair to both spouses and that neither spouse was forced or coerced into signing the agreement.