DIVORCE FAQ #9

9. How will our property be divided?

California law recognizes that both spouses make valuable contributions to a marriage. Most property
will be labeled either community property or separate property.

  • Community property. All property that you and your spouse acquired through labor or skill
    during the marriage is, at least in part, community property. You and your spouse may have
    more community property than you realize. For example, you may have an interest in pension
    and profit-sharing benefits, stock options, other retirement benefits or a business owned by one
    or both of you. Each spouse owns half of the community property. This is true even if only one
    spouse worked outside of the home during the marriage-and even if the property is in only one
    spouse's name.
    With few exceptions, debts incurred during the marriage are community debts as well. This
    includes credit card bills, even if the card is in your name only. Student loans are an exception
    and are considered separate property debts.

    Community property possessions and debts are divided equally unless you and your spouse
    agree to an unequal division-or unless there are more debts than assets. Keep in mind that if
    your spouse agrees to pay a community debt and fails to do so (or files for bankruptcy and
    discharges the debt), you may have to pay the creditor.

    Division of possessions and debts can be complicated. You should seek legal advice before
    entering into any such agreement. And if you have already signed away your rights to certain
    property, consult an attorney to find out if you are bound by the agreement. Finally, if you and
    your spouse cannot agree on the division of your debts and possessions, a judge will make the
    decision for you. He or she may not split everything in half; instead, the judge might give each
    of you items of equal value. For example, if your spouse gets the furniture and appliances, you
    might get the family car.

  • Separate property. Separate property is property acquired before your marriage, including
    rents or profits received from these items; property received after the date of your separation
    with your separate earnings; inheritances that were received either before or during the
    marriage; and gifts to you alone, not you and your spouse. Separate property is not divided
    during dissolution. Problems with identifying separate property occur when separate property
    has been mixed with community property. (The community may acquire an interest in separate
    property over time.) However, you may be entitled to receive your separate property back even
    if it has been mixed. There are complex tracing requirements where property has been mixed.
    Debts incurred before your marriage or after your separation are considered your separate
    property debts as well.
    You will be required to file proof that you delivered your spouse a list of all of your community
    and separate property, and your income and expenses, which is attached to documents called
    the preliminary and final declarations of disclosure (see #6). Determining the character of
    property can be complicated and mistakes can be costly. Obtain legal advice to make sure that
    your property is correctly listed as community or separate.

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