Question

How Is Property Divided In A Divorce In California?

Lawrence S. Viola

Answered by:
Lawrence S. Viola

Located in San Mateo, CA
Viola Law Firm P.C.

Lawrence S. Viola - Family Law - Super Lawyers

Answered by: Lawrence S. Viola

Viola Law Firm P.C.
San Mateo, CA
Phone: 650-532-9389
Fax: 650-342-6854

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Answer

The parties to a divorce can divide their property in any manner that they agree upon. However, if they cannot agree upon the division of their property, it is divided pursuant to the California Family Code, which divides types of property into three categories: community property, separate property and quasi-community property. The category the property falls under determines how it is divided.

  • Community property is, for the most part, all property and income that has been acquired during the marriage, with the exception of gifts or inheritance. Community property is divided 50-50.
  • Separate property is property that was acquired prior to the marriage or after separation, or property acquired as a result of a gift or inheritance. In divorce, separate property is awarded to the person to whom it belongs.
  • Quasi-community property is property that is located outside of California that would be considered community property if it were in California but has some different designation because of the jurisdiction in which it is located. For example, if a California couple purchases a second home in a noncommunity property state, that property would be considered quasi-community property during that couple’s divorce. Quasi-community property is divided 50-50, just like community property.

Where Complexities In Property Division Arise

The complexity of dividing property occurs primarily as a result of complexities in characterizing that property. For example, someone may obtain a grant of stock options with their employer. Those options may then vest over a period of time. That period of time may include both times when the parties were married and times when the parties were separated, and therefore the stock options take on a mixed character of community and separate property.

The same is true if, for example, someone owns a home prior to marriage, and after marriage the mortgage is paid with community earnings. The property all of a sudden takes on the mixed character of separate and community property.

For people trying to figure out what the future looks like in the event of a divorce, an important first step is understanding how their property would be characterized. Mischaracterizing property can have a substantial impact on your property settlement and your financial future after divorce, so it is vital to have skilled legal guidance during the process.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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