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Division of Property in Divorce

Hands holding wedding rings over desk with gavel representing Divorce

Division of Property in Divorce

Division of property in a divorce is a major part of a divorce. When a marriage ends in divorce, the couple must decide how to split their property and debts.

This is often a major area where couples disagree. Coming up with a division of property that both consider fair can be a challenge. California is a community property state and division of property follows these guidelines.

Bradley Bayan has the knowledge and experience in working out a marital settlement agreement that take into account division of property equally.

If you and your spouse can’t come to an agreement on how to split your assets and debts after filing for divorce, you may end up in court and the judge will decide for you. Generally speaking, couples are better served if in mediation or negotiations, they can work out a property division agreement. Sometimes if a couple cannot agree, then going to trial may be the only way to resolve it. 

Judges typically consider several factors when making these decisions, including how and when the assets were acquired and if there are any pre or post nuptial agreements. 

Bradley Bayan has more than 20 years of experience and is licensed by The California Bar. He has demonstrated a high level of experience, education, knowledge and skill in matrimonial and family law with a particular understanding of divorce in California.

How is Property Divided in a California Divorce?

In a California divorce, the property is generally divided according to the principle of “community property.” This means that each spouse is entitled to one-half of the community property, which includes all property acquired during the marriage, except for gifts and inheritances. If the couple has children, the court may also consider factors such as child custody and support when dividing property.

Is Property Split 50/50 in California?

In a California divorce, the property is generally split 50/50 between the spouses. Any monies, real estate, or other financial assets acquired by either spouse during the marriage belongs to both spouses. Under community property laws, both spouses own everything equally, regardless of who purchased it or earned the income. The court will consider all relevant factors in determining how to divide the property equally.

California is a Community Property State

California is a community property state. There are nine community property states in the U.S.: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In a divorce, the community property rules apply to the division of assets and debts between spouses. Marital property is divided equally between spouses and debts are also divided equally between spouses.

What is Community Property?

Community property is a type of ownership available to married couples in some states. It allows couples to jointly own property and assets and provides for an equitable division of these assets in the event of a divorce. California is a community property state. This can make the division of assets during divorce more complex, as each spouse may have a claim to half of the community property. However, community property division is one of the issues that can be negotiated in a divorce settlement.

How are Retirements, 401(k), and Pensions Divided?

Generally speaking, in a California divorce, all retirement accounts and assets are also subject to division. This includes 401(k)s and pensions. How these assets are divided will depend on a number of factors, including the length of the marriage, and when contributions were made. A spouse is only entitled to assets acquired during the marriage.

Steps for Dividing Property in California

The process of dividing property in a California divorce is generally initiated when one spouse files a divorce petition with the court. If the couple has minor children, the spouse who files first must also file a declaration of disclosure, which includes financial information about the value of assets, income, and the amount of debt.

Once the divorce petition is filed, the other spouse must be served with divorce papers. Once the spouse have received the papers, they have 30 days to file a response. If no response is filed, the court will assume that the other spouse agrees to the terms of the divorce and will proceed accordingly. Most spouses do respond and that spouse will then also disclose their financials so the division of community property is worked out.

If the couple cannot agree, then there can be time consuming back and forth and discussion among the lawyers and their clients. A trial may be needed to allow the court to hear the disputes and rule on the issues. After considering all evidence, the court will make a determination regarding how to divide the property between the two spouses.

Who Decides How Assets are Divided?

The division of assets in a California divorce is decided by the court through a trial or just their approval of a property settlement agreement put together by the parties and their lawyers. That agreement is presented to the court to approve in the final judgement of divorce.  Again any property and debts that were acquired during the marriage will be subject to division as community property.

Schedule a Consultation With a Redwood City Divorce Lawyer

Whether you are considering divorce or have already filed for divorce, we can help. Contact the Law Offices of Bradley Bayan at (650) 364-3600 to schedule a free consultation. 

Law Offices of

Bradley D. Bayan