Orange County Property Division Attorney
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Orange County Property Division Lawyer
If you’re in the process of undergoing a divorce or legal separation, you likely have some questions about property division and division of assets. Property division is quite a complex issue. In the state of California, the process of property division will determine what, exactly, the court will award each party.
When you work with a family law attorney to divide your marital property, they’ll have the experience to knowledgeably assess each item of property. Then, your attorney will be able to determine whether the item or asset is community or separate property. They will then advise you on how you and your ex can divide that property during your legal separation or divorce.
How Do You Divide Community Property in Orange County?
This may seem like a relatively simple statement at first read. However, much is being said in that brief sentence. To begin, in California, community property can refer to either real property (meaning real estate) or personal property (everything else). It doesn’t matter where that property is located or at what point in the marriage it was acquired.
Nonetheless, the process doesn’t end there, and it’s not that simple. Here are a few things to remember about community property division in California:
- In determining community property versus separate property, never assume that title is a guarantee of ownership. As an example, if a house was purchased under one party’s name, this deed doesn’t necessarily mean that the home is 100% that party’s separate property. Regardless of the name on the deed, if it was acquired during the marriage, then that house may not be considered 100% the property of one particular party.
- In some instances, it might even be challenging to determine whether the property was acquired before marriage or during the marriage. An example would be if one party purchased a property before marriage but later placed that property under the joint title. In this instance, was that property acquired before or during the marriage? Even if that property was acquired by one party before marriage, the issue doesn’t end there. It will then have to be determined how much, exactly, of that property is community property and how much is separate property. In essence, it’s a complicated issue and one that a skilled property division lawyer will be able to work through with you.
What Are the Different Types of Community Property?
Here are some of the most common forms of community property that might be acquired during marriage:
- Your family residence, as well as any additional real estate. If the home were bought while you were married, it would likely be deemed community property. Depending on the source of the funds used to purchase the home, your residence can be deemed either entirely or partially community property.
- Household furniture, appliances, and furnishings. This includes everything from your bed to the refrigerator. If it was acquired at a point during the marriage, and if marital earnings or savings were used to pay for it, then the item will likely be considered community property.
- Some jewelry, coin collections, art, antiques, or other valuables. Personal jewelry, such as a gifted piece or a wedding ring, is generally not considered community property, however. Laws surrounding how valuables are divided aren’t black and white, so it’s important to discuss them in-depth with your property division attorney.
- Some motorized vehicles, such as cars, motorcycles, trailers, and boats. This can sometimes be a tricky issue, in that some cars are acquired before the marriage but weren’t paid down until some point during the marriage. In those instances, vehicles may be considered a combination of separate and community property. Again, your property division attorney will help take you through the process.
Other items with the potential to be considered complete or partial community property are:
- Bank accounts or accounts with financial institutions include checking, saving, credit union, brokerage accounts, and more.
- Substantial quantities of cash earned during the marriage.
- Life insurance policies, in some instances.
- Stocks, bonds, mutual funds, and secure notes.
- Retirement and pension funds are often deemed partial community property.
Does Federal Law Have an Impact on Property Division?
How Is Property Divided in a Divorce?
Once your assets have been categorized into either the “community property” or “separate property” category, several methods might be used to enact the division. For example:
- An asset might be assigned to a single party in exchange for assets of equal value.
- One party could opt to “buy out” the other party’s share in a property asset.
- Both parties can choose to sell the assets, splitting the profits.
Most divorces consist of a combination of the above methods and other methods, as required. At the end of the day, it all hinges on the unique circumstances and facts of your divorce.
Determining Separate Property in California
Generally, separate property refers to assets acquired by one party before the marriage. It may also refer to gifts and inheritances, which can be deemed separate property, even if they were acquired during the marriage. If you’ve earned any profit, rent, or other money from separate property, those funds are also considered separate. If you purchase property using separate property, then the resulting purchase is deemed separate property.
An example would be in the case of a car purchased with money inherited from a deceased relative. Even if the car were acquired during the marriage, it would still be considered separate property rather than community property.
Notably, if an item is acquired following the date of separation, it will also be considered separate property—this includes income and new funds earned. For this reason, in California, the separation date can be a vital element to fairly determining what constitutes separate property.
It is also possible for debts to be deemed separate property.
Dividing Marital Debt
California’s designation as a community property state doesn’t just impact how assets are divided during a divorce or legal separation. Also affected is any debt that was acquired during the marriage. Thus, debt can be considered to belong equally to both parties.
If the divorcing parties haven’t entered into their own agreement regarding debt and property division (such as a prenuptial agreement), the court will divide debts and community property equally between both parties. Each asset might not be divided perfectly in half, but ultimately, the goal is to create an overall equal division.
However, if the value of the community debts is larger than the value of the community assets, exceptions can be made to the equal division rule. In instances such as this, California law allows the courts to issue an unequal division of debt by assigning any excess debts to the party in the financial situation best suited to paying them.
Whenever a debt is divided, the first step is determining that debt’s character—community or separate. Generally speaking, community debts will be those acquired sometime after marriage but prior to the date of separation. Even if these debts were incurred by one party (for example, maybe only one party signed the credit card slip), the debts will still be considered community property and will be split equally between each party.
For instance, if at some point during the marriage a party purchased children’s clothing and various necessary items using a credit card in only their own name, both parties will be equally responsible for any charges to that card.
As stated, the date of separation can significantly impact debt and property division during a divorce. If the debts are incurred after the date of separation (even if before the divorce), the judge will typically assign all of those debts to the party that incurred them post-separation.
Determining the Date of Separation
Whether in property or debt division, determining a couple’s specific date of separation isn’t always straightforward. However, it can be crucial to the case and its actual outcome. In fact, in some instances, the court may require a separate trial to determine the most accurate date of separation. Until this is completed, they may be unable to proceed with dividing the assets.
California law has established a two-step test to determine an official date of separation:
- A physical separation is a necessary prerequisite when deciding on what constitutes “separation.” This makes the date easier to determine, as often, one spouse will have moved out of the shared home. The issue becomes much more complex if an event like this didn’t occur, however. Sometimes, a judge may decide that a physical separation occurred when the individuals stopped sleeping in the same bed, moving to other locations within the house.
- On top of physical separation, at least one of the spouses must have had the intent to divorce or end the marriage. Instances of trial or temporary separation don’t qualify in this area. Having a firm intent to end the marriage is key.
Mixed Separate and Community Property
Occasionally, assets will be considered both separate and community property, to varying degrees. This is sometimes referred to as “co-mingling.” Determining the specifics of the division between community and separate can quickly grow complicated—but, it doesn’t have to be a perfect 50/50 split.
A typical instance of mixed property occurs with pensions and retirement benefits, assuming the relevant spouse held that job before (and during) the marriage. Any contributions made to the pension before the marriage, by whichever spouse, are considered separate property. However, contributions made to the pension during the marriage are deemed community property. Thus, this is a case of mixed separate and community property, which won’t necessarily offer an equal split during division.
How Do You Divide Assets in a Legal Separation?
Why Hire an Experienced Family Law Attorney for Property Division?
When you hire an Orange County property division lawyer during property division agreements, you’ll be working with someone who understands the intricacies of the law. Unsurprisingly, property division can become a complex issue, and it can be overwhelming to deal with for someone without prior knowledge. When you hire an attorney, you’ll be far more likely to receive the fairest possible division of property, which accounts for all the details of your unique situation.
Contact an Orange County Property Division Attorney
For over four decades, DeArmey Law has proudly served the Orange County area. Our goal is to help work our clients through their personal challenges in a way that doesn’t burden them with additional stress. The legal system can be complex; whenever someone chooses to represent themselves in court, that person soon finds themselves in over their heads. Plus, in these instances, people are far less likely to see a favorable outcome for their case—this certainly applies to instances of property division, as this area is far from a black and white issue. You’ll need someone who understands the details and the intricacies to see the fairest outcome of your trial.
Are you undergoing property division proceedings, following a divorce or a legal separation, in the Tustin or Orange County areas? You need compassionate and experienced attorneys by your side. Contact a skilled family law attorney at DeArmey Law today.