Division of Assets in Divorce

The division of assets in a divorce is often an emotional and contentious process for both spouses, however this does not always have to be the case. Understanding your state’s law regarding assets and property can be tough to navigate alone. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas Washington and Wisconsin are the states which have enacted community property laws regarding divorce.

California Family Code § 760

California is a community property state which, in short, means that assets attained during the marriage, except in very clearly defined circumstances, are considered community property in which each spouse has an undivided one-half interest. This is also referred to as matrimonial assets. Often, however, the division of property is not as simple as dividing everything in half.

Community property can be applied to the following, but is not limited to:

  • Earnings, income and wages of either spouse during the marriage
  • Interest accrued on bank accounts, pensions and other types of financial assets
  • Retirement account, assets and benefits
  • Real estate property
  • Mortgages
  • Automobile and motorcycles
  • Furniture

Accrued debt can also be considered community property when determining the division of assets in a divorce.

What is a Separate Property?

Separate property, or non-marital assets, are assets that are not subject to division in a divorce. Examples of this include gifts and inheritances that spouses acquire before marriage. Separately held bank accounts, personal injury settlements and property acquired post dissolution of marriage are also considered separate property. In short, property and assets that predate marriage — unless “transmuted” into community property are off limits during the divorce process.

Additional Factors Determining Division of Assets in a Divorce

As mentioned above, the division of assets and property may not as simple as dividing everything 50/50. There are three main factors that are taken into consideration by family court judges include:

  • Earning capacity of each spouse
  • Which parents holds the title of legal caretaker for the children (if applicable)
  • Marital faults (which do not apply in “no-fault” divorce states)
  • Prenuptial and/or post-nuptial agreements

Additionally, family courts will assess the following when dividing assets in a divorce:

  • Loss on continual benefits
  • Health and physical conditions
  • Age differences
  • Size of estate
  • Anticipated inheritances

Great care needs to be given to characterizing and valuing your assets properly to ensure that each party is awarded his or her fair share, otherwise known as equitable division, of the marital estate.

Our California Family Law firms are located in:

  • Newport Beach
  • Los Angeles
  • San Diego
  • Oakland
  • Riverside

Nevada offices are located in:

  • Reno
  • Las Vegas

We also provide legal representation for family law issues in:

  • Denver, Colorado
  • Johannesburg, South Africa