When a couple divorces or obtains a legal separation, one of the longer processes is the division of marital assets. A divorce requires several important decisions, including whether spousal support is awarded and determining a parenting plan if the couple has children. Property division is an integral part of any divorce. If a couple has a high number of assets, or complex and high-value assets, the process of property division can take significantly longer.
Couples can negotiate or mediate their property division out of court, along with the rest of their separation agreement. However, if a couple can’t reach a fair agreement, the court will handle the property division according to state law. It’s important to understand how the court handles the division of marital property and the importance of valuing and categorizing property. A qualified divorce attorney is an invaluable asset when dividing property, whether you are negotiating a separation agreement or advocating for your rights in court.
Property division can often be a contentious issue, particularly when each spouse has an emotional connection and financial interest in the properties and assets. Depending on the complexity of a couple’s assets, professional valuation may be needed. Even when spouses are willing to work together to determine a fair split of assets, the process can still be lengthy and frustrating. By working with an attorney who understands the intricacies of family law, including divorce and property division law, you expedite the divorce process.
At the Carlos Navarrete Law Firm, we have over 55 years of collective legal experience. We want to protect your rights during the divorce process and look out for your family’s interests while dividing property. Whether your divorce is settled through mediation or litigation, we can provide capable and thoughtful representation.
We have worked in Hanford and the surrounding communities for many years and know how state, federal, and local law can impact the various aspects of your divorce. Divorce laws are frequently changing, and it can be hard for families to navigate these statutes during one of the more emotionally draining events of their lives. Let our divorce attorneys help you find the most beneficial solution for your divorce and property division.
California is one of the few states that operates under community property laws. Under these statutes, marital property in a divorce is divided equally between spouses, regardless of outside factors in their marriage. The only property that is subject to division is marital or community property, which may include a marital home, shared bank accounts, real estate, retirement accounts, and other high-value assets. These assets are split 50-50.
Community property laws only apply if the couple’s assets are split by the court. There are two main ways that a couple can avoid community property laws and divide their marital property how they wish: alternative dispute resolution or an existing marital agreement.
If a couple divides their property through a separation agreement made outside of court, they do not have to follow community property laws. In an uncontested divorce, spouses will often try to mediate or negotiate spousal support, child support, child custody, and division of property.
Mediation involves spouses discussing the terms of the separation agreement with a mediation attorney or mediator. This individual helps smooth the discussion, allowing the couple to more effectively find solutions. In a collaborative divorce, each spouse is represented by their own attorney as they negotiate the terms. In any form of alternative dispute resolution, couples can determine the value of their marital assets and how they want to split them.
When couples create their own separation agreement, the court will generally approve it as a court order unless it is particularly unfair to one spouse. Ideally, if there is a legal professional present, the agreement supports the rights and interests of both spouses.
A marital agreement, which includes prenuptial and postnuptial agreements, outlines each spouse’s rights and responsibilities to their marital and separate property during and after a marriage. It can determine how assets and debts are divided in the event of a divorce. It can also determine other aspects of a divorce, such as certain spousal support provisions or the inheritance rights of a couple’s children from current and previous marriages.
If a divorcing couple has a marital agreement, their property is divided according to that agreement. The marital agreement is used instead of the couple having to mediate an agreement or follow community property laws. This can make the divorce process much more efficient.
However, for this to occur, the marital agreement has to be legally valid and enforceable. If the court reviews the agreement and finds that it is unconscionable toward one party, it will not enforce the provisions of the pre- or postnuptial agreement. Then, spouses will have spent the time and resources on making the agreement for nothing. Furthermore, they will still have to either mediate their property division or go through litigation.
Whether assets are split through ligation, alternative dispute resolution, or a marital agreement, it’s essential to understand what property is available to divide between spouses. To do so, spouses must determine what assets are marital property and what assets are their separate property.
Spouses have equal rights to all marital property. Marital property generally includes any assets or debts gained from the date of marriage to the date of separation. It also includes anything obtained through the use of marital assets or funds.
However, there are some exceptions. If one spouse received a gift or an inheritance during a marriage, this is not considered marital property. Additionally, a marital agreement can specifically address certain marital property and declare it as separate property.
California courts assume that all assets gained during a marriage are marital assets. To disprove this, a spouse must show proof that property obtained during their marriage is a separate asset.
Separate property is each spouse’s assets and debts that they held prior to the date of marriage and any that they have acquired since the date of separation. It also includes gifts and inheritance gained during or outside of the marriage, along with any property that either spouse obtained or earned with their own separate assets.
It can get complicated when separate assets gain value during a marriage. If a spouse made significant contributions to the asset’s increase in value, it may be considered marital property, even if the asset was separate. Spouses must be prepared to prove how the increase or earning of separate property remains their individual asset.
The court does not have jurisdiction to divide separate assets, and separate assets are not split during a divorce.
Separate property can turn into marital property by either accident or purposeful action by spouses.
This occurs when spouses purposefully decide to change the classification of an asset from separate to marital. Transmutation can also occur when marital assets are made separate. For a transmutation of an asset’s character to be valid, spouses must have written consent.
Commingling occurs when spouses combine their separate assets or include separate assets with marital property, sometimes without meaning to. This frequently occurs in shared bank accounts and retirement funds. The court will assume that commingled assets from a couple’s marriage are marital assets. For one spouse to alter this assumption, they must prove that the commingling was unintentional.
To accurately determine what assets are marital or separate, spouses need to know what their date of separation was. Assets gained after this date are separate property under state law. The date of separation does not always refer to the date when one spouse moves out. The following must be true for a date of separation:
Spouses may have mutually agreed on a divorce, or one spouse may have announced their intention and moved out. Either way, the date of separation is essential to determining what assets are split in the divorce.
Although you may not have gone through the divorce process before, an experienced family law attorney has handled the division of marital property for many divorces. They know the state and local requirements and understand each aspect of the divorce process. Without an attorney, either spouse may make mistakes during the filing process or during the evaluation of assets, slowing down and complicating the divorce. An attorney knows these common mistakes and can use their knowledge and experience to address the unique needs of your family and your divorce.
At the Carlos Navarrete Law Firm, we understand that a divorce is one of the hardest choices and processes of a family’s life. There is a lot at stake when getting a divorce. We want to help you and your spouse find an agreeable separation agreement in as efficient a manner as possible. We are also fully capable of defending your needs in court if negotiation is not an option. Contact the Carlos Navarrete Law Firm today.
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