You built a life and a home with your spouse, but now the time has come to divide that life and home. Divorce is often an emotionally and logistically complicated process, causing many to seek the services of a well-versed divorce attorney in Los Angeles. One of the complexities and the top reasons for contention during divorce proceedings is the division of property and debts. The division of property is not always a simple 50/50 split.
In a California divorce, all community property has to divided equally between spouses. Community property is described as all property acquired during the course of the marriage, prior to separation.
However, separate property is property not subjected to the California community property law in a divorce. Property will be considered “separate” when it was obtained before marriage, after a separation, or acquired during marriage by certain types of gifts or inheritance.
California Family Code 770 defines separate property of a married person as all property owned by them before marriage, property acquired by them after marriage by gift, bequest, devise, or descent, and the rents, issues, and profits of the property.
How you decide to deal with your separate property during a divorce can impact how much of it you keep. In an ideal situation, you have kept your separate property in your own bank account with only your name, or in a location where your spouse didn't have access to it or name on the account.
It's not always easy to ensure your property is not mixed, known as “commingled,” with community property. When your separate property gets mixed, it's much more difficult to make a separate property claim in a divorce.
Before agreeing to something that seems fair or merely settling for what you can get, protect yourself by speaking to a family law attorney. You may have more rights than you are aware of when it comes to your property in a divorce proceeding.
To give readers a better understanding on separate property, our California divorce lawyers are providing an overview below.
Property Defined in Divorce
When a couple pursues a legal separation or a divorce, the court will decide how the property should be divided between them. Even if you and your soon-to-be ex-spouse have already informally divided property or agree on how you will divide it, the court must make a formal ruling on the property.
This does not necessarily mean you will have to enter a courtroom for a proceeding but that a family court judge must sign off on the final decree, which a Los Angeles divorce attorney could help you draft.
In a divorce, property is considered anything that is bought or sold or has value. For instance:
- Houses or other pieces of real estate
- Musical instruments
- Bank accounts
- Pension plans
- Security deposits on apartments
- 401(k) plans
- Life insurance with cash value
- A patent
- A business
- Stocks and bonds
Community or Separate Property
California is classified as a community property state. When two people are married or have a registered domestic partnership, they are legally one community making their property that of the marriage.
Any debt or property that either individual acquires during the marriage is considered to be community property by California laws. Anything that you owned before getting married or before registering a domestic partnership is considered to be separate property.
If the separate property earned profits such as rent money, these monies are still separate property in a divorce. If you purchase property with separate property during your marriage or domestic partnership, your purchase also remains separate property.
Other examples of separate property include student loans and inheritances or gifts received after the marriage but prior to legal separation. Additionally, anything you acquire after the date of your separation is not community property but yours alone. This makes the date of separation extremely crucial when it comes to the division of assets in a divorce.
Likewise, debts you incur after the date of separation are also yours alone. When dividing debts and assets in your divorce, you will have to disclose community and separate property in your schedule of assets and debts.
Your separate property won't be included in the process of dividing the community property, but it has to be disclosed to present an accurate picture of the financial circumstances of both spouses.
Being mindful of the source of the money you use to purchase something can help you determine if it is community or separate property in your divorce as can hiring a reliable divorce lawyer in Los Angeles to represent your interests.
When Community and Separate Property Comingle
In some divorces, community and separate property are commingled, which can make property division even more difficult and arduous. It can be challenging to determine how the property should be legally split.
For example, if one spouse owned a house prior to getting married or having a domestic legal partnership, sold it, and then used the monies from the sale towards a down payment for a house with their spouse or domestic partner.
The down payment from the sale of the house owned by the one spouse is separate property, but when both spouses have been paying the mortgage, the equity in the home is community property.
The division of property in California divorces is addressed in California Family Code § 2550. If you have a situation where separate property has commingled with community property, you could benefit from the experience and knowledge of a Los Angeles divorce lawyer.
Your attorney will know how to best apply these laws in your specific situation. Sometimes each spouse will be willing to compromise on their separate property division in exchange for other pieces or property, but you should always consult with your attorney before making such an agreement.
Get Help with Property Division in Your Divorce
If you are unsure of what is separate or community property in your marriage and subsequent divorce, now is the time to seek legal help. What you agree to now could impact you and your children for a lifetime. Contact our Los Angeles divorce attorneys to get help with property division in your divorce.
We serve clients throughout Southern California, including the greater Los Angeles area and the San Fernando Valley. Are you in the Los Angeles area and have questions about handling your separate property?
Our Certified Family Law Specialist have experience representing high net-worth individuals and handling complex divorces. We offer efficient legal counsel to ensure your separate property is kept separate. Call our law firm or use the online contact form to schedule your divorce and property consultation.
Furman & Zavatsky
15821 Ventura Blvd #690
Encino, CA 91436