How Property Is Divided In Your Divorce Case

Division of Property Rules in a California Divorce

Under California law, a prenuptial or post-marital agreement takes precedence in determining the division of property when a couple seeks to divorce.  Although these agreements are sometimes contested, they are the chief determining factor to be applied to a property division settlement.  They generally cover critical items such as:

  • A complete property settlement detailing which spouse retains which assets;
  • Amount of spousal support, if any, and for how long;
  • Amount of child support, if any children are involved;
  • Child custody and visitation agreement, if applicable;
  • Disposition of assets in event of one spouse’s demise.

Absent a prenuptial or post-marital agreement, any assets acquired during a marriage are considered to be community property, and will be divided equally by the court, with some exceptions.

Community Property Laws

Community property is that property, real estate, income, investments and other items of monetary value that a couple acquires at any time during the marriage.  Whether the spouses contribute equally to the financial arrangement or one spouse is the sole provider makes no difference to the court.  Any real estate, within or outside the state, and any other assets acquired during the marriage are considered as belonging to both spouses and must be divided up equally.

While community property laws may seem simple, there are a number of complicating factors, such as division of a residence.  That’s why it’s critical to hire the right irvine divorce lawyer. Forcing the sale of a residence in order to split up the proceeds can be detrimental to the welfare of minor children, and the courts will often encourage the parents to find an amicable alternative.  For this reason a negotiated settlement, with give and take on both sides in order to reach a reasonable dissolution, is always preferable to a straight, 50/50 community property settlement mandated by the court, in the event the divorcing parties cannot reach an agreement.

Determination of Separate Property

Assets owned by one spouse before the marriage, such as rental property, may not be considered community property, with some exceptions.  If the spouses both contributed to the upkeep and renovation of the property during the marriage, for example, the court may then consider the property to be at least partially community property.  Also, if the property is sold during the marriage, the proceeds from the sale might then be considered by the court to be community property.  These are all decisions that will be made by the court during the divorce proceedings.

Prenuptial and Post-Marital Agreements

The easiest way to avoid problems concerning division of property during a divorce is to draft a prenuptial or post-marital agreement.  This agreement may seem a bit cold and pessimistic to be considered at the beginning of a marriage, but will save a lot of distress and ultimately legal fees in the event the marriage does not work out.  Such an agreement can be updated, periodically, to include such items as child custody, child support and spousal support as the marital situation changes.  These are decisions better made by cooler, level heads than those that prevail during the heat of a divorce.