If you are headed for
divorce and this is your first time down the path, you will naturally have a LOT
of questions, especially about how California’s divorce laws affect
For starters, you must know that there are two methods of distributing
marital assets in the United States:
equitable division and
community property. California follows the community property method of distribution.
If you’re originally from another state, community property may be
a new term for you. It may be an unfamiliar because only nine (9) states
are community property states, while the rest of the states are equitable
The community property states, include: 1) Arizona, 2) California, 3) Idaho,
4) Louisiana, 5) Nevada, 6) New Mexico, 7) Texas, 8) Washington, and 9)
Wisconsin. In Alaska, people can choose between the equitable division
and community property models.
Under the “community property” theory, each spouse has contributed
labor and value to a marriage, thus all marital assets acquired during
the course of the marriage are counted as marital or “community”
property, and are therefore subject to a 50/50 split upon divorce.
If the assets were acquired during the marriage, they ARE considered community
property, regardless of who earned the money, whose name is on the bank
account, or whose name is on the title.
Community property, includes but is not limited to:
- Fine art collections
- Cash in bank accounts
- The marital residence
- Real estate acquired during the marriage
- Investments, stocks and bonds
- IRAs, Roth IRAs, 401(k)s
- Military pensions
- Other retirement accounts and pensions
- And more
Not all property owned by two spouses is considered marital or “community”
property; certain types of property is considered to be “separate
property,” and therefore
only belonging to one spouse and not subject to division in a divorce.
Separate property generally includes:
- Assets or property acquired before the marriage
- Assets or property acquired after the separation
- An inheritance received before or during the marriage
- Gifts received before or during the marriage
When you file for divorce, your attorney’s first task will be to
determine what separate property is and what community property is. Sometimes,
separate property can get co-mingled with community property, so it may
be necessary to enlist the services of a financial professional in more
Do you have a prenuptial agreement?
If you have a
prenuptial agreement, you and your spouse may have made agreements that circumvent California’s
standard property distribution formula. For instance, a prenuptial agreement
can state that all of a couple’s income shall remain separate property
in the event of a divorce.
Providing they are reasonably fair and do not leave one spouse desolate,
prenuptial agreements have a lot of room for flexibility. Before the marriage,
an engaged couple can clearly outline the terms of their property settlement
should their marriage end in divorce.
A spouse can forfeit their right to spousal support, or caps can be placed
on spousal support through a prenuptial agreement. Spouses cannot however,
control matters over child support or child custody in a prenuptial agreement
as those are strictly under the jurisdiction of the family courts.
Couples Can Reach Their Own Agreements
Couples are not required by law to adhere to the 50/50 split theory when
dividing their marital assets. In fact, couples maintain the right to
control their property distribution providing it’s sound and reasonable
and the judge signs off on it.
For instance, a wealthy husband who is only expected to pay his ex-wife
spousal support and
child support, along with splitting their assets can decide to do more and buy a house
for her and his children to live in.
In other words, spouses can decide to be more “generous” if
they so please, or they can come to a compromise that both spouses are
satisfied with. This is called a
collaborative divorce, and it is by far less stressful and more cost-effective than the alternative –
Social Media and Divorce
Are you asking for spousal support? Are you fighting having to pay spousal
support, saying you can’t afford it? If money is an issue at all
in your divorce, we have two pieces of advice for you: 1) don’t
make any big expenditures until the divorce is over, and 2) don’t
flaunt your expenditures on social media.
In the midst of a divorce, it is not the right time to purchase the latest
Armani suit or Louis Vuitton purse or trip to Bora Bora; you certainly
don’t want to post your purchases on social media!
While you’re divorcing, it is not wise to make any large purchases,
especially if you’re trying to get or avoid paying
spousal support. If you post about your new Louis Vuitton on Facebook, opposing counsel
and the judge can find out about it and you could lose credibility in court.
If you are back on the dating scene, you want to avoid posting pictures
of you and your new sweetheart on vacation, at a hotel or enjoying fine
dining. In the eyes of the court, you could be wasting “marital
assets” on your new friend and this can not only complicate matters.
Also, you could be required to provide a financial accounting of how you
paid for these adventures.
During a divorce, please be careful of what you post on social media. If
you are not 100% certain if a picture or post could negatively affect
your divorce, it’s better to be safe than sorry and NOT post at all.
Need a Los Angeles divorce lawyer?
Contact Claery & Hammond, LLPfor a free, confidential consultation with an
experienced member of our legal team.