Property division is a heated topic for a divorcing couple. In California, all property and debts that are acquired during the marriage are equally divided following a divorce, unless otherwise stated in a prenuptial agreement. However, “equal” should not be confused for simple.
Property division can be extremely complicated as it is based on a number of factors, including the value of the property and how much debts the couple have accumulated. If spouses cannot come to an agreement, the case becomes more complicated and it will be up to a judge to determine who receives what during the distribution.
Community Property: What Is It?
Community property is defined as any asset or income that was earned by a married person while living with their legal spouse. Separate property (non-community property) is anything acquired before the marriage, given to one spouse during the marriage as a gift, or acquired after the separation.
If property is deemed “community” property, California law requires that the property be divided equally as long as there is no written agreement stating otherwise. Property is divided based on fair market value of the assets themselves minus any joint obligations. For example, consider a couple who has a joint savings account of $5,000, as well as a combined $1,000 in debts (liabilities). Deducting liabilities from the asset value, they now have $4,000. This would be split 50/50 at $2,000 per spouse.
Dividing the Family House
If the house is community property, there are other ways it can be divided, either through an agreement or a court order. Here are some typical ways houses are divided:
- Selling the Home – The spouses can agree to sell the home and split the profits of that sale. This is usually the only option if both parties cannot agree on an alternative solution.
- Buy Out – One spouse can buy out the other spouse’s share of the home. The buying spouse will have to then refinance the home to remove the selling spouse’s name from the mortgage and deed. When buying out a home, there are numerous costs that must be considered including how much the monthly payment will be, repairs and maintenance costs, property tax obligations, and insurance. The buying spouse should make sure these costs are financially feasible for his or her income.
- Deferred Sale – If one spouse is remaining in the home to care for minor children, a deferred sale is then used, which delays the sale of the home, leaving the two parents as co-owners. This is only used if the court decides it is necessary to lessen the impact of the divorce on the children. Some factors that will be used to determine this option include the financial ability of each spouse to maintain the home, the emotional impact of changing homes on the children, and whether or not the home can accommodate the needs of the child.
The Division of Assets Should be Handled by a Family Attorney
There are a lot of emotions present during a divorce. To make the division of community property easier, contact a family law attorney. The team at Sarieh Law Offices is here to help you understand your rights and what to expect in a divorce. Call us today for a consultation at (714) 542-6200 or fill out an online contact form.