Learn how California law divides property in a divorce
Start Your Online California Divorce Products. In California, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Superior Court within the Final Judgment of Dissolution of Marriage.
California is considered a "Community Property" state. Community property is defined as all property and debt that was acquired from the date of marriage until the marital cut-off date. The community assets will be split equally by the Superior Court if the spouses are unable to reach an agreement. When dividing property for a dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property.
This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: a A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. When economic situations warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.
California Code - Sections: , , , , , , , X Close Start Your Online Your spouse or partner may have gotten into debt in his or her own name that you are not aware of.
If the debt was incurred during your marriage or domestic partnership, it belongs to you too. Quasi-community property is any type of property that was acquired by either one or both spouses or domestic partners when living in another state that, had it been acquired while living in California, it would have been considered community property.
In other words, if you or your spouse or partner were living outside of California during your marriage or partnership, and you had any earnings, bought any real estate, or acquired any other type of property that in California would be community property, that property is called quasi-community property. And, in a divorce or legal separation in California, it will be treated as community property. For example, if you and your spouse were living in New York during part of your marriage, and you were both working and bought a car there. Now, you are living in California and are filing to get divorced or legally separated.
The earnings from your respective jobs in New York plus the car are quasi-community property because, if you had been working and bought that car in California, they would have been considered community property. So, in the California divorce, the earnings and car will be treated as community property.
How Debt and Property Should Be Divided in a Divorce
Separate property is anything you have that you owned before you were married or before you registered your domestic partnership. Inheritances and gifts to 1 spouse or domestic partner, even during the marriage or domestic partnership, are also separate property. Rents, profits, or other money you earn from your separate property is also separate property. And property you buy with separate property is also separate property. Separate property is also anything that you acquire after the date of separation, including money you earn.
This is 1 of the reasons why the date of separation is so important.
It can determine whether certain property or debt is community or separate property. If you have separate property, it belongs only to you, as long as it was kept separately.
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Debts can be separate property too, such as credit cards you might get after the date of separation. Always look at the source of the money used to buy an item. In this way, you can decide if the item is separate property or community property. Sometimes things are part separate property and part community property. When property is a combination of separate or community property, it can get very complicated to figure out how to divide it. A common situation is when 1 party owned a house before the marriage or domestic partnership and then sold it and used the proceeds as a down payment on another house after getting married, or after registering a domestic partnership.
The down payment for this new house would be considered separate property since the money came from selling a house that 1 person owned before the marriage or partnership. But, if the mortgage payments on the new house are made during the marriage or partnership using the earnings of either 1 of you, the equity value resulting from paying down the house loan is community property. The result is that the equity in the house is commingled. The contributions you each made to your pension before the marriage or registered domestic partnership are separate property.
The contributions made after the date of marriage or registration of the domestic partnership and before you separated are community property. After you separate, those contributions go back to being separate property. Exactly how the pension is divided is complicated and you may need an expert in pension plans to help you figure it out.
Division of Marital Property | California Divorce Laws
In some situations, if you each have a pension, you both may be able to keep your own pension. But you need to be sure of the value of each pension. First, a pension can be one of the most valuable assets you have from your marriage or domestic partnership. Second, the special rules that apply to pensions are very technical and do not apply to any other kind of asset.
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That court order is called a qualified domestic relations order, or QDRO. If you make an error, there could be harmful results. It is worth paying a lawyer to correctly prepare the QDRO for you.
If you have a question about whether some asset is community property, separate property, or mixed, also talk to a lawyer for advice.