Property Division during a Divorce or Legal Separation
Property division is a highly contentious issue in a divorce. Both spouses often want community property which includes everything the couple jointly own. Because California is a community property state, both spouses have equal right to and ownership of money earned during the marriage. It is irrelevant which spouse was responsible for earning the money. All property and possessions purchased with that money is also considered to be community property. Regardless of which spouse bought the property and possessions, both spouses are equal owners under the law.
Similar to the assets just described, all debts incurred during the marriage must be equally shared between the spouses. Community debts include home mortgages and balances on credit cards and loans. For this reason, once a couple decide to divorce, it is critical that they close bank accounts, credit cards, and other jointly used accounts to prevent misuse by one or both spouses. You need to actually close these accounts not merely remove your name from them.
One or both spouses may own separate property which are not included in the property division phase of a divorce. From a legal standpoint, separate property is:
- Any item a spouse owned before the date of the marriage
- Any item a spouse inherited or otherwise received as a gift during the term of the marriage
- Any item a spouse earned or bought after the date of separation
One spouse can give the other spouse property and document in writing that the property is to be considered separate. There are circumstances when community and separate property are combined. The only way to determine if property is separate or community is to provide receipts or other documentation that details when and how the property was purchased. This includes showing whether the money used to purchase the property was separate or community.
Like separate property, separate debts are assigned to the appropriate spouse. Any debt each spouse had prior to the marriage remains their separate debt. These are most typically credit cards or student loans.