Marital property includes all earnings during marriage and everything acquired with those earnings. Unless the creditor was specifically looking to the separate property of one spouse for payment, all debts incurred during marriage are marital. Separate property means gifts and inheritances to one spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested that is, the pensioner became legally entitled to receive it before marriage.
Property purchased with the separate funds of a spouse remains that spouse's separate property. Property purchased with a combination of separate and marital funds is part community and part non-marital property, so long as a spouse is able to show that some separate funds were used. Non-marital property mixed together with marital property generally becomes marital property. California law defines community property as any asset acquired or income earned by a married person while living with a spouse.
Separate property is defined as anything acquired by a spouse before the marriage, during the marriage by gift, devise, or bequest, and after the parties separate. Absent a written agreement requiring a particular division of property, the law requires an equal division of the community estate.
How to Divide Marital Property During Divorce
This means that from the total fair market value of the community assets, the joint obligations are subtracted, yielding the net community estate, which is divided in two. Unless agreed otherwise, each spouse must receive half of the net community estate. The law does not require an "in kind" division of the community property, which means the physical division of each asset. The law requires that the net value of the assets received by each spouse must be equal.
Thus, it is not uncommon for one spouse to be awarded the family residence, with the other spouse receives the family business and investment real estate. Each spouse receives an asset of equal value.
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Since the total net value of the assets being received by each spouse is equal, such a division is proper. Ordinarily, it is not difficult to determine whether a particular asset is community or separate property. However, certain types of assets can pose unique problems in this regard, including a business that one spouse owned before marriage and both spouses worked on during the marriage, or property that belonged to one spouse before marriage but was shared during the relationship.
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From the total fair market value of the community assets, the joint obligations of the parties are subtracted, yielding the net community estate. Where minor children are involved, the primary custodial parent may be allowed to remain in the marital home. During this time, the spouse who lives there usually pays the mortgage, property taxes, and homeowner's insurance, although the other spouse may be required to make those payments if there's a significant disparity in the spouses' income and resources.
Later, the house must be sold when there are no children living there or when the youngest child attains the age of majority, or as otherwise agreed by the parties or specified by the court. When a married person accumulates an interest in a pension, retirement, profit sharing, or other employee benefit plan during the marriage, the part that was accumulated during the marriage is community property.
California Divorce Property Settlement Laws | LegalZoom Legal Info
Pension Plans are divided in one of two ways: 1 a reservation of jurisdiction or 2 a cash-out. The spouse who owns the retirement plan can pay the other spouse for the non-owner spouse's share of the community interest, or the court can reserve jurisdiction to have each spouse receive a proportionate share of the benefits when they are paid.
A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, and how such benefits should be paid. The other method of dealing with a pension involves obtaining "actuarial evaluation.
Do You Need to Talk to a Stockton Divorce Lawyer About Dividing Assets 50-50 in Your Divorce?
By reviewing the plan description as well as the accumulations on the account of the employed spouse, the actuary can determine the "present value" of the community share of the pension plan. With a cash-out, the employed spouse receives the pension plan in its entirety, and the other spouse receives other community property assets of equivalent value. Enter Your Zip Code:.
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X Close California Info. Encyclopedia Checklists Tools Downloads Bookstore. Start Your Divorce. California Info. Defined Contribution Plans : A defined amount of money belonging to the employee. This process is best suited for people in the early years of marriage who do not have many entanglements. If spouses cannot agree, they should seek a divorce instead. A legal separation allows the couple to live apart from each other and make independent decisions on finances, property, and parenting.
It does not legally end the marriage, and spouses are not allowed to marry someone else. There are no residency requirements in the state of California in order to file. If desired, spouses can ask a judge to legally divide assets, debts, and child custody. People sometimes seek legal separation for religious reasons or issues regarding insurance or benefits. Legal separation may sometimes be an option if the couple is unsure about divorce and wants to temporarily separate themselves and their assets.
Annulments are rare, but they can happen. An annulment ends the marriage as if it never existed. The marriage will be declared void because it was not made on legal grounds. The court will make all final decisions on property, assets, and children. If you are looking for a top-rated divorce attorney to assist you in your divorce, contact us today.
Divorce A divorce, in legal terminology, is known as a Dissolution of Marriage. Summary Dissolution A Summary dissolution is a more stream-lined divorce process.
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In order to qualify for dissolution, the spouses must meet the following criteria: Have been married for five years or less. Do not have any children from the marriage and neither party is pregnant. Neither spouse owns a home or other real estate. Both spouses waive spousal support. You have a written agreement on division of assets and debts.