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Community Property in a Divorce

Resolving Property Settlements with a Mission Viejo Divorce Lawyer

When going through a divorce, property settlements is one of the many issues that needs to be settled. In California, all property between a married couple is categorized as either community or separate property. Community property is owned equally by both parties; in a divorce, that property will usually be divided as such among the spouses. Separate property will still be kept by the owner, but community property is equally divided. The determination of what property is community and what is non-community is done by following these guidelines:

  • Community:
    • All earnings received during the marriage
    • All things acquired with the earnings during the marriage
    • All debts acquired during the marriage (unpaid credit cards, mortgages, loans)
    • Interests in pension, retirement, and benefits which occur during the marriage
  • Separate:
    • Gifts
    • Inheritance
    • Personal injury awards
    • Property bought with separate funds
    • Businesses owned before the marriage
      • Increases in the value of the business occurring during the marriage may be community property
  • Partly Community and Partly Separate:
    • Property bought with some sort of combination of community funds and separate funds; there has to be proof of the usage of separate funds in the purchase

How is community property divided?

Generally the net community property will be divided equally among the spouses. California law does not specifically state a regulation for the exact division of community property. Every asset does not have to be considered a different entity so they do not all need to be divided separately—the property can be split according to value. In the end, the net value of all of the assets combined has to be split equally between each spouse. For example, if the house and business are equal in net value, one spouse can receive the business and the other can receive the house.

The date of separation is also very important because the determination of community property is all earnings received and all debts incurred from the beginning of the marriage until the date of separation. In some states this date would be the day that both spouses decide to end the marriage. In other states, the date of separation would be when one spouse moves out. Courts will generally look for evidence of separation if the date is up for debate because tracking down a decision is much more subjective than tracking down when someone moved out.

Who keeps the house?

When it comes to community property most people want to know who gets to keep the house. The answer to this question is complicated when children are involved because courts will think of the children's best interests. Generally, whichever spouse spends the most time with the children or is the primary caregiver will stay in the house with the kids. If children are not involved and the marital home is considered separate property then the owner can ask the other spouse to leave. If the home is community property, however, and there are not children involved, neither spouse can make the other the leave. Asking or requesting is allowed but there is not a legal right to force them out of the house. Problems arise when one spouse chooses to change the locks or take measures into their own hands. If this happens, the other spouse can call the police and the court may take this act into consideration in future decisions. The only exception is if there is the presence of domestic violence and restraining order is granted. In that case, the victim of domestic violence can remain in the home while the other spouse has to leave.

How a Mission Viejo Divorce Lawyer Can Help

Divorce can involve high levels of emotions due to an ending relationship and the many issues that now have to be resolved. Property settlements are only one of the many areas that need to be divided between spouses. This process can be overwhelming, which is why seeking help from a knowledgeable divorce lawyer from The Hunter Law Group is critical to ensure that your needs and wants are protected. Obtain skilled legal representation from a Mission Viejo divorce lawyer today if you are in the middle of a divorce case. Our firm offers a case evaluation that you can fill out online to get started. Call today to see how we may be able to help you reach favorable settlements in your divorce. We look forward to hearing from you.

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