Property Division

Separation property during marriage dissolution can be very complex. Contrary to the common discussion of community property interests in a marriage being merely a division of assets and liabilities, there are different complicated elements:

Separation Property

California Family Law Code 770  sets forth the definition of “separate property of a married person:”

(1) All property owned by the person before marriage;

(2) All property acquired by the person after marriage by gift, bequest, devise or descent.

(3) The rents, issues, and profits of the property described in this section.

property division

It seems simple, but it is not:

For instance, what if a person owns real property (such as a home) before marriage and then the spouse makes the house payments? The spouse who makes the house payments gets certain community property (joint) credit based upon a Moore/Mardsen calculation for certain items included in the house payments.  Remember also that the earnings of the spouses after marriage may become community property depending on the source of the income.

In addition, under California Family Law Code 771 , the earnings and accumulations of a spouse and the minor children living with, or in the custody of the spouse after the date of separation of the spouses are the separate property of the spouse with an exception: the earnings and accumulations of an unemancipated minor child related to a contract of a type shall remain the sole legal property of the minor child. [This is especially relevant in California for minor television and film actors.]

To further complicate the issue, what if the separate property asset gets intermingled with community property?  Then the process of tracing must transpire.  This process may be difficult or impossible if the records are very old.

Another unique problem is a business owned before marriage and both spouses worked on during the marriage or one spouse had a business but did not work on the business very much, and the list goes on and on.

Of course, a prenuptial agreement can be used to cover the parties’ intent on the separate property assets upon marriage, and if the prenuptial agreement is declared valid, then those provisions can be upheld in California courts.

Schedule a one-half hour FREE consultation for an analysis by an attorney.

 CALL US TODAY (323) 274-4287

Community Property

The married couple’s community property can be easily calculated under California Family Law Code 760   : All property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

Notice that it states: “while domiciled in this state.” Therefore, if you have property in another state, then that’s considered quasi-community property, and the California court may have to review the laws of that particular state or county.

Valuing Property

With real property values increasing in Los Angeles County monthly, to achieve the “fair market value” may be a challenge. Basically, from the total fair market value of the community assets, the obligations of the parties are subtracted to achieve the net community asset. Each spouse must receive half of the net community asset.  However, another complication may arise if the parties want the minor children to continue to reside in the family home.  Then exclusive use issues arise.

401(k) and Pension Plans

These assets are divided between the parties upon marriage dissolution.  Such a division will depend upon whether the creation/employment occurred before, during marriage or after marriage.  That’s why the date of separation can be critical in dividing community property.

Liabilities (Debts)

The liabilities of the parties are likewise considered community debts and distributed in alignment with the assets of the parties.  That is to say, the business debts may or may not be community debts.  The debts incurred before marriage may have been assumed during marriage such as former marriage support orders.

The division of community assets and liabilities can be complex and require the knowledge of an experienced family law attorney. Contact RoseAnn Frazee for a evalution.

 CALL US TODAY (323) 274-4287


Fill out the form below to receive a free and confidential initial consultation.