Divorce is usually not a pleasant topic. When a marriage ends and a life together is no longer the best option, there is always the looming issue of property and property division. What do you do with that?
The State of California has a fairly robust and well-established practice of asset division. The property of the couple is broadly divided into two categories – community property and separate property. What these two are and how that is determined, we asked divorce and family law experts at JWB Family Law. According to them, this matter is less precise, and is generally heavily debated and argued. However, they shared broadly what these two concepts mean and how these things are handled.
Simply put, community property is everything acquired during the marriage. This includes big things such as real estate, stocks & bonds, artworks, vehicles, bank accounts, and more. It also includes smaller items such as home appliances, computers and everything in between.
Keep in mind, though, this also applies to debt. So, if you are in debt, chances are both spouses will be leaving with a portion of the debt.
While most of the things listed above tend to be shared between partners and are eligible to be divided in the divorce, there are certain things that are generally accepted to be separate property and are not going to be divided during the divorce.
There are three broad categories of such possessions. First, anything a single spouse inherited (if it is explicitly listed that they are the sole inheritor and not the couple) – remains in their separate property. The same applies to gifts – even if the gifting and inheritance occurred during the marriage, they can be argued to be separate property.
Finally, any property acquired before the marriage or after the marriage can be argued to be separate property and protected from division during the divorce. Keep in mind that this applies to both property (or money) as much as it does for debts and loans.
How Asset Division Is Decided
How long or difficult this process is going to be largely depends on the situation between the former spouses. If the decision to divorce is mutual and somewhat amicable, asset division can go relatively smoothly and quickly.
However, if the divorce is more turbulent, it is likely that both sides will try to challenge any item of personal property not included in the asset division process. Keeping accurate and detailed documentation may seem tedious until it becomes highly important.
In order to have the most accurate and just asset division, it’s important to properly evaluate all of the assets of the couple. You will need a good divorce and family law attorney at your side in order to ensure your rights are not challenged and threatened.
Can the Couple Divide the Assets without the Court?
It is possible for the couple to come to an agreement without the need for a costly and exhausting divorce process. If the settlement agreement is reached by the two parties, the court can simply approve it and resolve the issue quickly. Naturally, having a divorce attorney take a look at the agreement is always a good idea to ensure it is done correctly.
Another way a couple can come to an amicable and simple resolution is divorce mediation. In those cases, a neutral third party – a mediator guides the couple through the process. They have no legal or decision-making authority, but are merely advisory. It is the spouses who need to come to an agreement. The mediator will simply draw up the documentation necessary for the judge to ratify.
Having a good attorney at your side during a difficult period such as a divorce is highly advisable – the emotional state most people are in during these periods generally doesn’t translate well into rational decisions.