What You Need to Know About Property Rights After Divorce
In the event of a divorce, deciding which spouse keeps the marital home is an important decision to make. Here’s what you need to know about who keeps the marital home in a California divorce.
When a couple gets divorced, the court decides the way in which the couple’s property will be divided. Even if the couple decides how they wish to split the property beforehand, the court is still required to make a formal order on the property division.
What is Considered Property In Property Division?
According to the California courts, property includes anything tangible that can be bought. This includes but is not limited to a couple’s house, car, furniture, or clothing.
It also includes intangible things with value, such as bank accounts, security deposits, pension and 401(k) plans, stocks, and life insurance with a cash value.
The Different Types of Property
California recognizes two different types of property: community property and separate property, and the ownership rights of these types of property differ.
California is a state that recognizes community property, meaning that a legal marriage or domestic partnership joins two individuals together as a “community.” Therefore, anything purchased or acquired by the couple is considered community property, and any debt accumulated by the couple is considered community debt. Community property also includes the couple’s earnings and everything purchased by the couple, both individually and together, using those earnings.
Separate property refers to anything that an individual spouse owned prior to entering a legal marriage or domestic partnership. It also includes gifts and inheritances designated to an individual spouse, even if the gift or inheritance is received while the spouse is married. Property acquired after the couple’s separation is also considered separate property.
Related: How to Divide Property in a California Divorce
Community and Separate Property After A Divorce
In California, each spouse owns one-half of the couple’s community property, and is responsible for one-half of the couple’s community debt each. Community property is divided equally between both spouses in the event of a divorce.
Contrarily, separate property is considered by the court as belonging only to the individual.
Commingling
Some property items are a combination of both community and separate property. These items are products of “commingling” – the combination of both types of property.
A common example of a commingled property is if one spouse owned a house prior to the couple’s marriage or domestic partnership, and then sold it to pay for a down payment on another house after getting married. The down payment would be considered separate property, but any payments made on the house’s mortgage from the couple’s combined earnings would be considered community property.
In instances of commingling, the court recommends consulting a lawyer.
Related: Tracing Commingled Assets in a California Divorce
Dividing Property
The California state court recommends that couples considering divorce or separation create an agreement that divides everything – both property and debt – equally. In this way, dividing the couple’s property does not entail a physical division.
Deciding who keeps a marital home in a California divorce is a personal decision individual to each couple. The main requirement of the division is ensuring that the division is fair and agreed upon, as well as signed off on by the court.
FAQs About Who Keeps the Marital Home in a California Divorce
My spouse and I lived in another state prior to moving to California and purchased things together there. What kind of property is this considered?
If a couple lived outside of California while in a legal marriage or domestic partnership, any property bought together is considered quasi-community property. It is treated as community property by California state court if the couple divorces in California.
Related: Quasi-Community Property in California
How should my spouse and I begin dividing our property?
The California state court recommends that the couple make a list of everything owned, both by the couple together and separately by each individual spouse. Then, decide which items are considered community property and separate property, and what the fair market value of each item is. Following this, each spouse must fill out a Schedule of Assets and Debts form, where each party declares all of their assets and debts to each other, where the couple can evaluate each other’s evaluations of the items and decide whether to settle there or go to trial.
When is the separation and division of property rights complete and finalized?
Until the agreement is signed off on by the California state court, community property items are still considered to be owned by both spouses. This is why the court’s decision is so important and final in any event of property division after a separation or divorce.
Contact Us
If you or your loved one have any more questions about who keeps the marital home in a California divorce, contact us. Get your free consultation with one of our experienced Property Division Attorneys.