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Division of Property in Divorce: What’s Fair?

When someone decides they don’t want to share their lives with their spouse any more, they probably want to move on as quickly as possible. There’s just one problem: they have to divide their shared assets first. 

That division is often a serious source of conflict during modern divorces. Many people want to avoid giving “their” possessions to their spouse, even if the assets were legally considered joint property during their marriage. 

As a result, ensuring a fair and equitable division of assets can be daunting, as it involves not only financial considerations but also emotional ties to certain possessions. Below, we’ll explore the principles and factors that guide the division of property in divorce, particularly within the context of California law, and provide some practical advice on achieving a fair settlement.

Understanding Community Property vs. Separate Property

In California, which is a community property state, the distinction between community property and separate property is fundamental.

  • Community Property: Generally includes all assets and debts acquired by either spouse during the marriage. This can encompass earnings, real estate, personal items, and even debts incurred during the marriage.
  • Separate Property: Includes assets and debts that one spouse owned before the marriage, as well as inheritances and gifts received by one spouse during the marriage. Additionally, any income or assets derived from separate property remain separate, provided they are kept distinct and not commingled with community property.

Only community property must be divided, so it is crucial to determine whether an asset is joint or separately owned before addressing it in the divorce. 

The Division Process: Finding a Fair Split

The first step in dividing property is creating a comprehensive inventory of all assets and debts. This includes real estate, bank accounts, investments, retirement accounts, personal items, and any business interests. Accurate valuation of these items is crucial and may require professional appraisals.

Determining whether assets are community or separate property is the next step. This can sometimes be contentious, particularly if there has been a commingling of assets or if one spouse claims an asset as separate property.

Ideally, spouses will negotiate and agree on how to divide their possessions. Mediation can be a valuable tool in these negotiations, providing a less adversarial environment and often leading to more amicable agreements.

Common challenges involved in the division process may include:

  1. Commingled Assets: When separate and community property are mixed, it can be challenging to untangle and correctly classify assets.
  2. Hidden Assets: If one spouse attempts to hide assets, it can complicate the division process. Full financial disclosure is critical.
  3. Complex Assets: Business interests, stock options, and retirement accounts can be particularly difficult to value and divide fairly.
  4. Emotional Attachments: Personal attachments to certain properties, such as the family home, can lead to disputes and complicate negotiations.

If spouses cannot reach an agreement, the court will intervene and divide everything based on California’s community property laws. The court aims for an equal division but may consider other factors to achieve fairness.

Key Factors in Fair Property Division

When it comes to dividing marital possessions fairly, California courts consider a number of factors above and beyond community property laws, such as:

  1. Length of the Marriage: The duration of the marriage can impact how assets are divided. Longer marriages often result in a more even split of marital possessions, whereas shorter marriages might see a more distinct division based on individual contributions.
  2. Economic Circumstances of Each Spouse: Courts consider each spouse’s financial situation, including their earning capacity, health, age, and overall financial needs. This consideration ensures that neither spouse is left destitute following the divorce.
  3. Contributions to the Marriage: Non-monetary contributions, such as homemaking and child-rearing, are also valued. These contributions are often considered when deciding how to divide assets fairly.
  4. Future Needs: The future financial needs and responsibilities of each spouse, including child custody and support arrangements, play a significant role in asset division.
  5. Agreements Between Spouses: Prenuptial and postnuptial agreements can significantly influence the division. Courts generally uphold these agreements, provided they were entered into voluntarily and with full disclosure.

With these considerations in mind, couples can begin the process of splitting their property, either in private negotiations or through litigation. 

Practical Tips for a Fair Division

Whether couples choose to pursue private settlements or litigation, there are a few strategies that can simplify the process of dividing marital assets fairly:

  1. Maintain Detailed Records: Keeping thorough records of all assets, debts, and financial transactions can help ensure an accurate and fair division.
  2. Consult Financial Experts: Financial advisors and forensic accountants can provide valuable insights into the valuation and division of complex assets.
  3. Consider Tax Implications: Different assets have different tax consequences. It’s important to consider these when dividing items to ensure a fair settlement.
  4. Focus on Future Needs: While dividing assets, it’s crucial to think about your future financial stability and needs, including retirement planning and housing.
  5. Stay Objective: Emotional attachment to certain possessions can cloud judgment. Try to remain objective and focus on what’s most important for your financial future.

An experienced divorce attorney is invaluable for implementing these strategies and achieving a fair division of assets in California divorces.

Fighting for Fair and Equitable Asset Division in California

Asset division in a divorce is a complex process that requires careful consideration of various factors to ensure fairness. By understanding the principles of community and separate property, maintaining detailed records, consulting experts, and focusing on future needs, divorcing spouses can work towards a fair and equitable division of their assets. While the process can be challenging, especially with emotional and financial complexities, a clear and objective approach can help achieve a just outcome for both parties.

At Kaspar & Lugay, LLP, we understand the intricacies of property division in divorce and are dedicated to guiding our clients through this difficult time with compassion and expertise. Our goal is to help you secure a fair settlement that supports your financial well-being and future stability. Get in touch to learn more about how we can assist you.