After Divorce: Dividing your property

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By Atty. Johnson Lazaro

Divorce is not an easy subject to write about.  For many couples divorce is painful.  It is emotionally draining and can be financially devastating.  And yet the divorce rate in America is staggering. You’ve heard about the celebrity who spent thousands on a lavish wedding only to call it quits after six months. Sometimes divorce is inevitable – a part of life.  Division of property is one of the most hotly contested issues in a divorce proceeding.

If you divorce in California, “community property” laws would apply.  Community property is to be divided 50-50 at divorce.  The only exception is when you decide to divide your property by agreement.  Some refer to this as a “prenuptial agreement” and this is an entirely different animal.  Generally, separate property includes all property owned before marriage.  It also includes property acquired during marriage that is acquired by gift or inheritance; property produced by separate property; and property acquired after the date of separation.  This sounds simple but it’s not.  There are technical nuances so you may need to do some research to figure out your separate property.  If your property is acquired in California during marriage and before separation, that property is presumed to be community property.  It is “presumed” because lawyers would often rebut that presumption to earn their paycheck.

If you and your spouse acquire property as husband and wife, that property is presumed to be community property unless there is something in writing showing a different intention.  Again if it is presumed, lawyers would most likely argue one way or the other.  When you and spouse deposit your cash in one account you have “commingled” your funds.  The presumption again is that your cash is community property unless your lawyer makes a brilliant argument that your cash is your separate property.

Let’s say that you have a separate property mansion located on Russian Hill in San Francisco – a multi-million dollar property.  When you make a mortgage payment to that mansion using your community funds, some part of that mansion may have become community property.  All of a sudden your spouse will be thinking of moving in.  But this is not uncommon among couples.  There are established legal principles to deal with this issue.  There are formulas and remedies dealing specifically with this type of problem.

Retirement benefits may also me considered community property.  If the work to earn these benefits was performed between the date of marriage and the date of separation, the benefits are community property.  Couples oftentimes overlook these benefits but family law judges will not sign the divorce judgment without some kind of resolution on these benefits.

There are other properties that maybe subject to division by the court such as stock options, pensions, termination pay, and worker’s compensation benefits.  Of course there are personal properties as well – the car, the dinner table, the TV set etc.  It is sometimes easier and less acrimonious to figure out who will get who before calling a lawyer.  There is such a thing as an amicable divorce and it is far less stressful.  Once the court starts deciding your property issues, the legal fees start to rise.  Your lawyer becomes ecstatic.

Try to work things out and if reconciliation is out of the question, then maintain civility and respect as you talk about property division with your spouse.  It does not have to be combative or hostile. It can be simplified to the satisfaction of both parties.

This article does not form an attorney-client relationship.  It should not be relied upon as legal advice.  For questions please contact the author at 866-237-9555 or email at law@lazarolaw.com

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