How Is Property Divided in a Divorce in California?

Divorce is one of the toughest events someone can go through, and one of the hardest parts of divorce is determining what property is to be divided and who gets what after the divorce. Unfortunately, dividing property, assets, and debts is part of divorce, but there are laws that can help couples answer the question, “How is property divided in a divorce in California?”

The state defines property as anything you can buy or sell that has value. Until your divorce is finalized by a court order, any property or debt belongs to both parties, even if one party is in possession of an asset and using it, such as a car.

Some items that are considered property include:

• House or other real estate
• Cars
• Furniture
• Bank accounts
• Savings accounts
• 401k
• Stocks
• Pensions
• Cash
• Jewelry
• Art

Separate and Community Property

There are two types of property to consider when dividing the marital estate in a divorce.

Separate property refers to assets that were:

• Owned by an individual before the marriage
• Acquired after the separation
• A gift or an inheritance

Community property is any asset either party gains after the date of their marriage or before the date of their separation.

When community property and separate property get mixed together, it is called commingling. For example, one party had savings before the marriage and used it to buy a house after the marriage date. Then, both parties paid into the house with their income earned after the marriage date. In this case, the equity in the house is part community and part separate. This is also common with retirement accounts that were funded before and after the marriage date.

It’s not surprising that disputes can arise when dividing property in a divorce. After all, financial disagreements are the leading precursor of divorce. One issue couples often disagree about is the date of separation. In some marriages, the date of separation is the date when the couple mutually decided that the marriage was over and initiated divorce proceedings. In other marriages, the date of separation is the day one party moved out of their shared residence.

Whatever the date of separation is, any loans, purchases made, or income earned are not considered community property. Everything that is community property must be divided up. When the division of property cannot be settled in mediation or otherwise, a family court judge will be the final decision-maker of property division in the divorce.

How Is Property Divided in a Divorce in California?

In short, the only property that is divided in a divorce is community property.

Community property includes the following assets and debts:

• Income earned while married
• Items, property, or real estate purchased while married (for example, a car purchased with income earned during the marriage)
• Debt taken on while married (such as a home mortgage)

Community property is divided, and separate property stays with its original owner. This sounds fairly straightforward, but it can get complicated. A property division attorney or mediator is a great resource if you need help sorting out disputes. They have experience in difficult divorce cases and can suggest strategies that engender compromise. It may even be necessary to call in a professional third party, such as a forensic accountant, to organize all the assets.

When to Contact a Property Division Attorney

You should call a property division lawyer when you are divorcing and have any assets. An attorney is especially critical if you just can’t come to an agreement regarding a large asset, such as a house or business that you jointly own. The average price of a home in California was more than $800,000 in 2023, which is why this component of divorce can get especially complicated. Determining what percentage of equity is a community asset warrants the help of someone who knows the law very well.

Alternatively, if you are facing bankruptcy as a couple because you owe a significant amount of debt, an attorney can also determine what debt is separate, especially if you and your spouse disagree. You should also consult a lawyer if you signed a prenuptial or postnuptial agreement.

When a California judge issues the final divorce decree, it must include the details of how you will divide property, even if you’ve already made a verbal agreement regarding who will get what. In addition to property division, the decree should also clearly outline matters related to child custody, child support, and other family law concerns. The biggest mistake you can make is forgoing the legal advice of a property division attorney and regretting it later.

FAQs

Q: Who Gets to Keep the House in a Divorce in California?

A: If a couple owns a house together, and it’s considered community property, it’s ideally meant to be divided equally. However, if the house was purchased prior to the marriage, a gift, or an inheritance, it may not be subject to division in divorce. If it is a commingled asset, whatever portion of the home’s equity is community property will be split in some agreed-upon arrangement. Otherwise, the home will be sold, and the proceeds will be divided appropriately.

Q: Does the Wife Always Get Half in a Divorce in California?

A: In a California divorce, community property is typically split equally between the two parties. There are exceptions to this, though, so the wife doesn’t necessarily always get half in a divorce. In general, any property, assets, or debts that were obtained or incurred after the marriage date but before the separation date are subject to equal division upon divorce.

Q: What Assets Cannot Be Split in a Divorce in California?

A: Separate property is not subject to division between the two parties in a divorce. Separate property is anything that was obtained or owned prior to the marriage date or after the separation date, and this includes debt. Gifts or inheritances are also excluded from community property division in a divorce in California; therefore, these assets cannot be split either.

Q: What Is My Wife Entitled to in a Divorce in California?

A: In a California divorce, the wife is entitled to half of any property that was gained after the date of the marriage and before the date of separation. These assets are known as community property and are subject to equal division in a divorce. This is also true for debts. Loans that were taken out after the date of marriage or before the date of separation are also subject to an equal split.

Get Experienced and Professional Legal Advice

In California, 10% of women and 7% of men are divorced. These people have all gotten through divorce and moved on, and so can you. Divorce attorneys can potentially make the process easier and faster.

If you’re asking how property is divided in a divorce in California, the most reliable source to answer this question is a qualified California property division lawyer. They can review your situation and determine how your property will likely be divided. Contact Steven J. Brown Attorney at Law, to get the specific answers you’re looking for regarding the division of property in your divorce.