How Is Property Divided in a Divorce in California

By
Education & Training with Rel Real Estate

Divorce, especially when it is contested, can be a very complicated process for couples. This is because there are several issues involved that must be addressed for it to be successful. The division of property is one of the items to consider in a divorce claim.

Every state has its laws and guidelines for dividing property between divorcing couples. If you are looking to get an online divorce, you must know the applicable laws and processes involved.

In California, couples getting a divorce can either resolve to divide and settle properties themselves or ask the court to do it for them. The California Community Property Law governs how property is divided. Under this law, properties acquired, and debts accrued by couples belong equally to both spouses, and in the case of a divorce, the division must be done equally as well.

While some couples agree on how to divide properties and settle debts, others don't. For the former, the divorce process is faster and a lot smoother. For the latter, the decision of a judge or an arbitrator is sought.

Whether you are filing for divorce yourself or making an application for divorce online, there are crucial factors to be considered. These factors, according to divorce laws in California, include:

Is the Property Community or Separate Property?

Property division in a divorce process, be it contested or uncontested, starts by determining the property type. Is it a community property or a separate property? Under California divorce law, it is presumed that assets acquired by a couple during the subsistence of a valid marriage are community property. Community property means that the property is owned equally by both parties.

A property is said to be separate property if acquired by one of the spouses before the marriage. It is also separate property if it came as a gift or an inheritance during the marriage. Any item purchased with, or given in exchange for separate property also qualifies as separate property under California divorce law.

Any property acquired by either of the spouses before a divorce, but after separation, is considered separate property. In California, the date of separation refers to the date one of the spouses decides to end the marriage. It does not necessarily mean the day the said spouse moved out of the home. The spouse, who is the petitioner, must establish an end to the marriage by proving some act that demonstrates the spouse's decision to end the marriage.

Separate property owned by either of the spouses does not always come up for division in a divorce. However, the spouse owning the separate property is to provide supporting documents to establish ownership alongside the divorce papers.
Differentiating community property from separate property, though complicated, is very important. This is why divorce over the internet requires that you work with the best online divorce service like californiaonlinedivorce.com. If spouses are unable to decide what property belongs to them, the court will have to exercise discretion to decide for them.

What Is the Value of The Property?

Another major factor that the spouses or the court consider in a divorce is the value of properties. To determine this, you have to start by making a comprehensive list of everything you and your spouse own together since the commencement of the marriage. Do not include separate property.

Assigning a monetary value to each item might require the assistance of an expert. Appraisals are the best ways to determine the real value of properties, antiques, and artworks.

Properties are assets that are appreciated in nature. That is why it is challenging to ascertain a fixed value to specific properties. The time and expertise involved in valuing community properties often add to the cost of divorce. Note, however, that since personal properties do not come up for division in a divorce, only community properties need to be valued.

Another challenge with valuing assets is retirement benefits. For this to be done successfully, the services of financial professionals must be employed. This task gets easier if there is a record of retirement assets available for you at your workplace.

After a property has been valued and its cost is determined, spouses can agree to split the money or have the court do it for them, considering the relevant laws to be followed.

Once all the community property has been valued successfully, you are expected to submit a Schedule of Assets and Debts listing assets owned and debts accrued. The best way to go about this is for you and your spouse to create separate lists. When done, try to compare the lists to be sure there are no inconsistencies. Where there seems to be a disagreement on the property or its value, you can settle it before submitting a Schedule of Assets and Debts.

How Should the Property Be Divided Between the Couples?

With the value of properties and other assets owned by you and your spouse ascertained, the next question is how the property should be divided. According to California divorce laws, there are three ways property can be divided between spouses.

The first is to have specific items assigned to each spouse. The second is to allow a spouse to buy out their partner’s share of the property. The third is to reach an agreement to hold property together even after completing the divorce process.
While couples mostly consider the first and second options, the third is usually not a favorable choice. This is because most couples want to cut ties with their estranged former lover, which is impossible if there is a subsisting financial relationship between them.

However, you and your spouse can reach an agreement on basic terms. One of those terms could be to keep an investment property while it increases in value or an educational trust fund for your children.

Couples can decide to assign items on their own without the help of the court. It is easier to do when the property’s value is clear, and you are satisfied with what is assigned to you. This type of DIY divorce strategy makes the process a lot faster and less expensive.

When you are more interested in the property than money, you can buy out your spouse. It can be done by a mutual agreement between spouses without an attorney. However, you will need a lawyer to draft the conveyance and give it the force of law.

One major challenge that spouses and the court face when dividing property is the issue of debts. Under California divorce laws, couples are to assign all accrued debts during the subsistence of a valid marriage. These debts include, but are not limited to, credit card debts, car loans, and mortgages. This brings to question how debt is split when dividing properties.

Splitting Debts in a Divorce

All debts in a divorce case must be assigned to one of the spouses. A separation or divorce order does not free the couples from their financial obligations to creditors. Where couples fail to assign debts on their own, the court will step in to do so.
Also, one of the spouses can ask the court to place a lien on their spouse’s separate property to whom the debt is assigned. It is not done to take control of the property but is used as a security of payment for the assigned debt. The best strategy is to have accrued debts settled first before the property is divided.

In determining to whom the debt is assigned in a divorce case, care must be exercised. Couples are typically not allowed to share a debt to ensure that the creditor doesn't suffer from the spouses’ decision. The debt should be assigned to one spouse who, in turn, uses other assets to balance the cost.

Dividing assets after the dissolution of marriage may sound simple but can sometimes be a very daunting task. Several requirements must be followed to complete divorce online. Child custody, spousal support, and other factors also have to be considered and agreed upon.

To be sure you are on the right side of the divorce outcome, you don't have to do it yourself. Surf the internet for the best online divorce website to get a list of quality divorce companies. When you find one, make sure to ask as many questions as you have about the proceeding, paperwork, and filing fees before you get started.

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