/How Do You Divide Property in a Divorce?

How Do You Divide Property in a Divorce?

When couples divorce, discussions about dividing the family’s assets can get heated, causing stress and anxiety.  At De Falla Law & Mediation, our job is to help the couple have a respectful discussion, keeping both of people’s interests in mind.  The goal?  A property division that feels fair to both parties.

California is a Community Property State

California is community property state which means all property acquired during the marriage with marital funds belongs equally to each party.  This applies to homes, cars, retirement funds, stock, bonds, etc.

An increase in the value of those assets also belongs equally to each party.  The appreciation is usually calculated from the time the asset was purchased or acquired until the date it is divided.  A court might not may not divide every asset right down the middle (that would be hard to do with a car, for example), but it will make sure that each party gets assets worth equal value.

Separate Property

Separate property is property that belongs only to one party.  It is not divided during the divorce process.  Separate property includes:

  • Property a spouse owned prior to the marriage in his or her own name.
  • Gifts received at any time.
  • Inheritances received at any time, including money from an insurance policy that has the person designated as a beneficiary.
  • Earnings after the date of separation.

This property remains your own separate property and is not divided as part of the divorce process as long as it was kept separated out from the community assets.

Problems with Separate Property and Comingling

Dividing marital property seems easy.  It is divided equally.  Separate property remains separate property.  But sometimes, the couple has mixed their separate property with the marital property so much that it becomes incredibly difficult to tell the difference in the two.

For example, you may have moved into a house that your spouse owned prior to your marriage.  You have lived there together for 10 years and you felt as though it was your home too, but your name was never added to the deed.

Your spouse wants to claim the house as his or her separate property.  You think this is unfair since you contributed your share of the mortgage payments during the 10 years you lived there.  That should be worth something, and under the law, it is.  But it might take a bit of professional assistance to work out the amount of the property that is community property and the amount that is separate property.

One important fact to remember about separate property is that the person who is claiming that a certain piece of property or amount of money is their own separate property must prove it is actually a separate asset.  That means there must be records or other evidence to support the separate property claim.

Collaborative Divorce

The beauty of a collaborative divorce is that the couple can craft its own tailor-made property division, focused on reaching an agreement that makes sense for the family.  When there are different ideas about dividing community property, or different opinions regarding a separate property claim, their team of lawyers, financial professionals and divorce coaches (mental health/communication professionals) will assist in brainstorming options and reviewing the pros and cons – helping the divorcing couple create an outcome that is right for their family.

For assistance with your divorce and the division of property or any other aspect of divorce, contact us today at De Falla Law & Mediation.

2020-06-23T14:00:30-07:00