There is a stereotype in divorce cases that your spouse “gets half your stuff.” This stereotype is truer than in most states, but there are some technicalities to consider. The Ventura divorce lawyers at The Law Offices of Bamieh and De Smeth explain California’s property division laws, what it means that California is a “community property state,” and what you should expect from your divorce case. If you are considering filing for divorce, talk to the Ventura divorce attorneys at Bamieh and De Smeth today for a free consultation on your divorce case.
What is a Community Property State?
California is known as a “community property state” regarding asset division in divorce cases. There are 9 community property states in the United States. Community property rules treat all marital property as equal and give legal access and ownership to each spouse. Upon divorce, many states may divide things “equitably” or “fairly,” leading to the term “equitable division of assets.” Community property states have a much more straightforward rule: each party gets half.
In other states, many factors go into how property is divided. Each party’s contribution as a homemaker, the income they brought to the marriage to purchase marital property, and even their fault in the divorce may play into how much property they get upon divorce. California does away with issues of fairness or equity, and instead gives each party half of their shared, marital property.
What Property is Divided 50/50 in a California Divorce?
Since California law divides marital property 50/50 during a divorce, you might think it is simpler to get a divorce. However, there are still workarounds that you and your attorney can use to help maximize what you are entitled to keep during your divorce. One tool that is used is to make arguments based on the definition of “marital property,” as opposed to “individual property.”
Community property rules only divide “marital property” during the divorce. Marital property includes any property jointly owned by both spouses, or any property attained during the marriage. Most other property is considered “individual property” or “separate property.”
Separate property includes the property that each party owned before the marriage, and any property directly connected to that. For instance, if you owned a business or a classic sports car before the marriage, that is always your property, not shared marital property. If you traded your car in for a more practical family sedan, the sedan would be a replacement for the sportscar, so that may also be considered separate property.
There are some tricky situations where something that seems separate may still be included as marital property. First, things you intentionally share become marital property. That means that money put into a joint checking account or a house you add your spouse’s name to might become marital property. In addition, though you may continue to have separate, individual property, any increase in its value is shared as marital property. That means that if your personal stock portfolio increases in value by $10,000 during the life of your marriage, that $10,000 is actually marital property.
Writing a premarital or prenuptial agreement can help define what property is individual and what property is marital. You can also do this through a postmarital or postnuptial agreement if you are planning to make a series of transactions involving individual property after you are already married.
Securing property as separate property ensures that you keep 100% of it during a divorce, rather than your spouse getting half. Because of this, many asset division cases deal with this facet of the case. If you cannot guarantee enough property to support you, alimony or spousal support may be another option.
What Property Do I Get During Divorce?
The idea of getting “half” of the assets may initially seem confusing. When you are married, you each have full ownership of every asset you own together, and you each have the ability to control or sell it (sometimes requiring your spouse’s consent or agreement). When you get divorced, this usually changes. Rather than splitting 50/50 ownership of each item you own, you and your attorneys usually come to an agreement over which assets each party will take, coming out to an equal amount for each side.
This means that many divorce cases involve disputes over which assets you will take. For instance, if you have a large house, you may want to keep that as an investment in real property, but your spouse may want to take the 401k or your joint mutual fund investments. When things are easily interchangeable or can be sold off and converted to cash, it is simple enough to split the cash. However, things like family heirlooms, businesses, and even the engagement ring can become points of serious argument in a divorce case. Talk to a Santa Barbara divorce attorney about how to structure your divorce to best shape your share of the 50/50 property division.
Ventura Property Division Lawyers Offering Free Consultations
If you are considering filing for divorce, talk to an attorney about what you can expect during property division. For a free consultation on your case, contact the Ventura family lawyers at The Law Offices of Bamieh and De Smeth today. Our number is (805) 643-5555.