Property Division In A Same-Sex Divorce
If you are divorcing in the state of California, the rules that govern the division of assets are the same whether you are in a same-sex marriage or a male-female marriage. As Orange County divorce lawyers, we feel that you should understand the legal difference between marital and non-marital properties and assets.
In general, any properties or assets that a spouse or a couple acquire after their wedding will be deemed marital property. Non-marital property is property owned or obtained before the wedding. The law provides few exceptions, but gifts and inheritances are non-marital property.
HOW CAN YOU AVOID A CONTENTIOUS COURTROOM DIVORCE?
If same-sex spouses can agree on which properties and assets are marital and which are non-marital, they can save on a divorce, and they can avoid a contentious, emotional courtroom battle. When the spouses cannot agree, a fair division of the assets can be a substantial challenge.
Same-sex spouses who are divorcing in Southern California must be represented by an experienced Orange County divorce attorney who routinely handles the division of assets and properties in divorce cases. The right attorney can ensure that you keep what is rightfully yours.
In some same-sex divorce cases, a judge will need to review the facts and make a judgment regarding how long the spouses were genuinely married. In some of these cases, the judge may determine that a “marriage” existed in fact and practice before the couple could legally marry.
HOW ARE MARITAL PROPERTIES AND ASSETS DIVIDED IN A DIVORCE?
The divorce courts in this state will divide the marital assets and properties equally – that is, unless the divorcing spouses can reach another agreement on their own.
The division of properties and assets sounds easy on paper, but in some California divorces, a fair and accurate division of the marital properties and assets can become extraordinarily complicated, so you must have a qualified divorce lawyer working diligently on your behalf.
WHAT WILL YOU HAVE TO DISCLOSE?
To get divorced in this state, both spouses must submit a preliminary declaration of disclosure. Let your divorce lawyer help you fill out the disclosure forms. It should list all of the personal and marital property and assets that have been acquired both within and outside of the marriage.
Those seeking a divorce must also declare their incomes, expenses, debts, and obligations. Every item and asset owned by the spouses must be listed. Disclosure makes a settlement determination easier by providing the court with a clear assessment of the financial condition of the spouses.
It is a violation of California law for a divorcing spouse to fail to disclose any property or asset. If something has value, it must be declared. The spouse who initiates the divorce must file a preliminary declaration of disclosure when filing a divorce petition or within sixty days of filing.
WHAT MAY BE DEEMED A MARITAL ASSET?
The other spouse must file the preliminary disclosure declaration when responding to the divorce petition or within sixty days of the response. California courts extend the sixty-day disclosure period only in the narrowest circumstances.
Marital assets may include but are not limited to:
- assets held in trust
- automobiles and other vehicles
- bank accounts and cash
- future earnings
- jewelry, works of art, and household furnishings
- SSDI benefits, pensions, and lawsuit settlements
- real estate
- retirement accounts, 401Ks, and IRAs
- stocks and bonds
If you have established a business while married, that business may be deemed marital property that is subject to a buyout or a division in a California divorce. Some couples also own cabins, farmland, investment properties, commercial properties, and vacation homes.
HOW IS THE DIVISION OF REAL ESTATE HANDLED?
In California divorces, the fair and equitable division of real estate can sometimes be the most complex matter that the divorcing spouses face. One difficulty is accurately determining the exact value of the real estate.
Fluctuating real estate market conditions can make it genuinely difficult to determine a property’s worth. Another problem is deciding if the property will be sold or retained by one of the spouses in exchange for some other consideration.
WHAT ABOUT RETIREMENT PLANS, PETS, AND PIECES OF ART?
Dividing a retirement plan can be exceedingly complicated. The plans that a divorcing spouse may claim include 401Ks, 403Bs, IRAs, and pensions. If you are over fifty, you must do whatever you can to protect your retirement funds. A good divorce attorney can help.
Pieces of art may have personal meaning beyond its monetary value, so “dividing” art can be somewhat more difficult than dealing with most other kinds of property. If a spouse owned a pet before getting married, that spouse can probably keep the pet.
The division of assets in a divorce may require comprehensive investigation and verification, but divorce does not necessarily mean that you will lose half of everything. An experienced Orange County divorce attorney can work to help you protect your most important assets.
WHAT CAN HAPPEN IF ONE PARTNER TRIES TO HIDE ASSETS?
When a marriage is headed for divorce, spouses sometimes try to hide their assets. Some use offshore banks. Others transfer assets to a relative or a friend. Today, however, most financial records are electronic, so assets are harder to hide.
Divorce lawyers now use high-tech, cutting edge strategies and tools to help clients find hidden assets and help divorcing spouses get what they deserve.
If you are thinking about trying to hide your own assets, don’t. Your spouse’s divorce attorney may know how to find and identify hidden assets. You’ll want to make certain that your own divorce lawyer also has substantial experience in uncovering hidden assets.
Every divorce is difficult. Same-sex divorce is no different. However, if you and your spouse can find some common ground and some areas of agreement, your divorce will be far less difficult and much less emotionally exhausting.
A good divorce lawyer’s help is imperative. The right divorce lawyer can make your divorce just a bit easier, but you must be advised and represented by that attorney from the very beginning of the divorce process. That is your right.