Property Division Lawyer – Encinitas
Community Property Law
Regardless of where the marriage took place, divorces that are filed in the state of California are governed by the concept known as “community property division.” (Unless a valid prenuptial agreement provides otherwise)
According to California community property law, with only minor exceptions, all assets and debt acquired from the date of marriage until the date of separation is characterized as community property and subject to equal division as between the husband and wife.
Methods of Division of Community Property
Community property and community debt can be divided “in kind” or not “in kind.” “In kind” division basically means that a particular asset and/or debt is literally divided down the middle. Obviously, it is not always possible to divide every asset down the middle unless the asset is sold. It is quite common in divorce cases for the parties to distribute assets according to the interests of the parties and to equalize unequal division with an “equalization payment.” A good example of this would be if one spouse wanted to keep the community residence. Assuming that the residence had equity, the spouse retaining the residence would owe to the “out spouse” an equalization equal to one half the total community interest in the property. This equalization could be traded off against other assets like retirement accounts, investment accounts, or cash on hand.
Broadly speaking, assets and debt acquired after marriage are considered community property. However, individuals can retain separate property in a divorce proceeding. The most common example of separate property is assets that an individual owned prior to entering marriage. Those assets can include objects, real estate, investments, cash, and retirement savings.
Often, assets that were initially separate are comingled during a marriage. For example, a house owned prior to the marriage may be sold and the money used to purchase another house. If there is a clear paper trail, the established value of the initial home can typically be removed from community property.
Two specific types of assets gained during a marriage also qualify as separate property in divorce proceedings: gifts and inheritances. For example, if one spouse is given a rare painting or inherits a lump sum of cash, that asset is an individual asset and is retained by the person following a divorce proceeding.
Whether you’re ready to schedule your first meeting with one of our divorce attorneys, or you simply have questions, call Griffith, Young & Lass at 858-345-1720 for your free consultation.
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