If you have separate property, it belongs only to you, as long as it was kept separately. Debts can be separate property too, such as credit cards you might get after the date of separation. Always look at the source of the money used to buy an item. In this way, you can decide if the item is separate property or community property. Sometimes things are part separate property and part community property. When property is a combination of separate or community property, it can get very complicated to figure out how to divide it.
A common situation is when 1 party owned a house before the marriage or domestic partnership and then sold it and used the proceeds as a down payment on another house after getting married, or after registering a domestic partnership. The down payment for this new house would be considered separate property since the money came from selling a house that 1 person owned before the marriage or partnership. But, if the mortgage payments on the new house are made during the marriage or partnership using the earnings of either 1 of you, the equity value resulting from paying down the house loan is community property.
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The result is that the equity in the house is commingled. The contributions you each made to your pension before the marriage or registered domestic partnership are separate property. The contributions made after the date of marriage or registration of the domestic partnership and before you separated are community property.
After you separate, those contributions go back to being separate property. Exactly how the pension is divided is complicated and you may need an expert in pension plans to help you figure it out.
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In some situations, if you each have a pension, you both may be able to keep your own pension. But you need to be sure of the value of each pension.
How Will a California Court Divide Our Property in a Divorce?
First, a pension can be one of the most valuable assets you have from your marriage or domestic partnership. Second, the special rules that apply to pensions are very technical and do not apply to any other kind of asset. That court order is called a qualified domestic relations order, or QDRO. If you make an error, there could be harmful results. It is worth paying a lawyer to correctly prepare the QDRO for you. If you have a question about whether some asset is community property, separate property, or mixed, also talk to a lawyer for advice.
The same is true if you are unsure about how a debt should be paid.
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How Are Property and Debts Divided During Divorce? | Nolo
Yes, the court will probably approve your agreement. The court will generally approve an agreement on property settlement, even if it is not an even split. However, you may want to state in your agreement the reason why the two of you agree to an uneven split of the property.
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Skip to main content. Topics Family Issues Divorce. I want to get a divorce. How will the court divide our property? It will be necessary to determine which assets are joint and which, if any, are separate, owned exclusively by one partner, such as inheritances or personal gifts, as these are generally excluded from the property division.
It is not always clear if a particular asset is separately owned or community property. Your attorney will understand the application of California law in these cases and will advise you. In many cases it is not desirable, or even possible, to divide a particular asset down the middle; however, each party should receive assets totaling the same amount.
In addition to inventorying all of your marital assets, you will need to itemize your debts. Like property, debts are in most cases to be divided equally. They can also be used to balance an unequal distribution of assets. In cases of excessive amounts of debt, filing bankruptcy as a couple prior to the divorce may be advisable to simplify the property settlement. California, however, unlike many states, does not allow doubling of the assets exempted from a bankruptcy, so you should discuss the matter with your attorney if your joint debt has become unmanageable.
Ideally, you and your soon-to-be-ex spouse, with the help of your lawyer, will be able to arrive at property settlement agreement that works for both of you. Your attorney will assist you in negotiating a fair division and will draft a contract called a Marital Settlement Agreement , which you both will sign, to be included in your final divorce order. This is important in the event that one or the other spouse fails to honor the agreement.