What & How Is Property Divided in an Orange County Divorce Case?
In California, there are 2 types of property considered by California family courts in divorce and legal separation cases: (1) Community property and (2) separate property.
California is a “community Property” state, meaning that each spouse owns a one-half interest in all real and personal property and debs acquired during the marriage regardless of whether one of both parties were gainfully employed during the marriage or how the title of the property or debt is held Such assets can include pensions and other retirement plans and investments. Such debts can include credit card bills.
There are exceptions to the rule of community property, such as gifts or inheritances received during the marriage that were not intermixed with community property (like joint bank accounts) during the marriage. Gifts and inheritances are generally considered the separate property of the spouse that received the,. Moreover, student loans are generally considered the separate property debt of the party who incurred them, because they keep the benefit of their education paid for by such loans even after the marriage ends. Separate property is also anything you owned before you got married or the you earned or receive after your date of separation.
In dividing community property, it is the intent of California Law to divide up the property in such as way so that one party takes an asset of one value, the other party takes and other asset or equal value, so that in the the, the value of the divided assets have been equalized between the partied. After all, simply because both parties own one-half of the dining room table does not mean that it makes any sense to grab a chainsaw and cut the table in half!
Under some circumstances where the assets have been equally divided as possible but the division is still one sided, an “Equalization Payment” may need to be made in order to equalize the value of the property divided.
Separate property is assets and debts acquired prior to the date of the marriage or after the parties have separated as well as inheritances received before or even during the marriage, and gifts to a particular spouse. Separate property can include the rents or profits generated from such separate property. Separate property is not divided y the court as part of the marital property.
Where separate property has been commingled with community property assets, a spouse claiming a separate property interest has the legal burden of tracing the source of such assets, which can be very complicated. In certain situations a forensic accountant may need to be appointed in order to address and resolve complex tracing issues.
For more information or to schedule a consultation, contact Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, by visiting www.maggiolawfirm.com or calling (949) 553-0304.
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