Orange County Property Division Attorney
25+ Years of Experience in LA County, San Bernardino, Orange, Riverside, San Diego, Ventura, and Santa Barbara
An important topic of discussion in a divorce is how the couple will divide their property and debts. This can be decided between spouses on their own, in mediation, or, if they cannot agree with each other, in trial. Attorney Kevin B. Gibbs has over 25 years of professional experience guiding divorcing clients through mediation and negotiation in Southern California, and he can provide you the legal support you need to voice your goals and interests in negotiation.
What Is Community Property?
Under California’s community property laws, assets and debts that spouses acquire during marriage belong equally to both of them, and they must divide them equally in a divorce. In the case where couples cannot decide on division of certain property (e.g., the family home), they must go to court to ask for a decision from an arbitrator or a judge.
What Is Separate Property?
Property one spouse owned alone, before the marriage, or acquired by gift or inheritance during the marriage is considered that spouse’s separate property. Separate property also includes earnings on separate property and any increase in the value of separate property, as long as the property owner can prove that with financial records or other documents. Because separate property belongs exclusively to the spouse who owns it, it is generally not divided in a divorce.
Be aware that property spouses acquire before a divorce but after the date of separation is also separate property in California. Note that the date of separation is the date that one spouse decides to end the marriage, and it requires some act of physical separation combined with other actions clearly demonstrating that the spouse has decided to end the marriage.
A couple can agree either before or during marriage to change an asset that was originally separate property into community property, or vice versa. However, such agreements must be in writing and clearly state the intentions of the parties; simply changing the title of the property is not enough.
It is important to note that a spouse may change a separate asset into a community asset without meaning to by combining (“commingling”) separate property with marital property. Common examples of this could be if a spouse makes deposits to the other spouse’s premarital bank account during the marriage; or if both spouses pay the mortgage of a house technically owned by one spouse.
Distinguishing community property from separate property can be complicated, especially if one spouse owns a business or other asset to which the other contributed labor or funds during the marriage. Spouses who cannot agree on what belongs to whom will have to let a court decide whether the commingled property was a gift to the marriage or whether the original owner should be reimbursed in whole or in part.
Note that many types of assets can be partially community and partially separate, such as retirement accounts one spouse contributed to both before and after the marriage, or a business one spouse started before marriage and continued operating after marriage.
Assigning Value to Property
The spouses, or the court if they cannot agree, generally assign a monetary value to each item of property to be divided. This can help a couple determine the value of real property as well as items like antiques or artwork.
When it comes to retirement assets, though, this process may require the assistance of an actuary, C.P.A., or other financial professional. Once the couple assigns a value to their property, they will either agree to split the money or ask the court to do it for them.
Note that spouses can divide assets by assigning certain items to each other, allowing one spouse to “buy out” the other’s share of an asset, or by selling assets and dividing the proceeds. They can also agree to hold property together even after the divorce. This may be common in cases where couples agree to keep a family home until children are out of school or if they choose to keep investment property, hoping that it will increase in value.
The spouses must also assign all debts accrued during the marriage, including mortgages, car loans, and credit card debts. Note that a divorce order is not binding on creditors, who may continue trying to collect a community debt from either spouse.
Questions? Contact Kevin B. Gibbs Today.
If you and your spouse are negotiating property division in your divorce proceedings, it is best to consult an experienced lawyer to ensure your property and spousal rights are being addressed. Whether you decide to pursue mediation or end up having to go to court, a property division attorney can better help you prepare to voice your needs and interests regarding separate and marital property. Kevin B. Gibbs can work with you to prepare for your property division negotiations with your spouse and provide you the legal support you need.