Property Division in a California Divorce

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 a spouse’s property rights.

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 division states.

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:

  • Collectibles
  • Automobiles
  • 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 complex cases.

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 – divorce litigation.

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.