Dividing their assets and debts is one of the most difficult, confusing, and stressful parts of a divorce. Before you panic about losing your home, car, and family heirlooms, keep reading. In this article, we’ll answer five frequently asked questions about property division in California that may help you understand the process and what’s involved.
1. What Does Equitable Distribution Mean in a Divorce Case?
Equitable distribution is the process of dividing marital and divisible property in court. In a perfect world, you and your spouse would negotiate the division of your marital property without a judge’s involvement. Of course, most spouses don’t divorce if they’re finding it easy to cooperate. If you can’t come to an agreement (which is not out of the ordinary), the court will schedule a hearing and divide your marital property using a theory of equitable distribution. Marital property includes both assets and debts.
Based on this theory, a judge will split your property 50-50 unless such a split would be inequitable or unfair. When a judge assesses the fairness of a split, they consider a series of factors, some of which are:
- Each spouse’s income, debts, and property
- How long the marriage lasted and each spouse’s age
- Ways in which a spouse directly or indirectly contributed to the other’s educational and professional opportunities
- A custodial parent’s need to occupy or own the marital home or other household items
- Both spouses’ physical and mental health
- Tax consequences related to the property division
- Any other factors that are “just and proper”
Note that the court will not consider child support and alimony payments when dividing marital property.
2. What Is Marital Property and How Much Is It Worth?
For the purposes of property division, courts classify property into three categories:
Marital Property
This category includes any income, assets, property, and debts that you accumulated during the marriage. Marital property can include wages, pension and retirement funds, investment accounts, real estate, personal property, mortgages, car loans, and credit card bills.
Separate Property
Your spouse typically does not get a share of your separate property, which includes your pre-marriage assets and debts as well as gifts or inheritances that someone specifically gave to one spouse and not the other.
It’s important to note that separate property can transform into marital property if you commingle it, meaning mix it with marital assets. For example, if you use an inheritance to buy a jointly-titled asset, it might become marital property. If your spouse is trying to claim a share of your separate property, you should contact a lawyer immediately.
Divisible Property
There’s always some time that passes between when spouses separate and when the court gets around to handling property distribution, and this category exists to deal with assets that the spouses receive during that period as well as assets that change in value during that period. Note that an asset that was earned before the date of separation will still count as divisible property if it’s received after separation.
Once you identify your marital and divisible property, you need to determine its value. Early on in your divorce, both spouses will need to complete an affidavit of equitable distribution that outlines their assets and the fair-market value of those assets as well as any debts. While some values are easy to set, valuing complicated assets like small businesses may require help from an expert.
To decide the value of items in an equitable distribution case, the judge will refer to the fair market value. The law defines fair market value as the price that a willing buyer would pay a willing seller for the item in question when neither is under a compulsion to buy or sell the property. The fair market value doesn’t mean what was paid for a specific item when it was initially bought five years ago (purchase price), nor does it mean the price someone would pay if they went out and bought the item new (replacement value).
3. Will a Prenuptial Agreement Protect My Assets?
Nuptial agreements can occur either before (prenuptial) or during a marriage (postnuptial). In a nuptial agreement, you and your spouse define which property is marital and which is separate. This can streamline your property division process if you divorce.
However, not every nuptial agreement is valid. You can dispute the validity of a nuptial agreement if you didn’t enter it voluntarily, if it was based on fraud or misrepresentations, or if it wasn’t properly signed.
Even if you don’t have a nuptial agreement, you can still negotiate a separation agreement, which is an out-of-court property settlement that divides marital and divisible property and identifies separate property. A separation agreement can also resolve child custody and support issues. However, keep in mind that once you enter a separation agreement, it will become legally binding and won’t be easy to change. You should always get advice from a lawyer before you enter a separation agreement.
4. Who Gets to Stay in Our House?
If you have minor or dependent children, the parent who has primary physical custody may get to stay in the marital home. However, that spouse will need to consider whether they can afford to pay the remaining mortgage and other costs before trying to stay in the house. Sometimes, the best option for both parties is to sell the marital home and divide the proceeds.
5. My Spouse’s Behavior Caused Our Divorce — Does That Impact Their Property Share?
Typically, California courts don’t consider fault when they divide your marital property. You won’t get a bigger share of property or get to keep the house because your spouse cheated on you, as an example.
Okwuosa Pulliam Law Group: Experienced Divorce Lawyers for Clients in Southern California
If you’re considering a separation or your spouse recently filed for divorce, you need to understand your legal options. We can help guide you through difficult family law issues with compassion and make sure your rights are protected. To schedule your initial consultation, fill out our quick and easy online contact form or call us at 310-935-9635. We’re here if you need help.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.
You are an active dad — way beyond changing a few diapers. You attend to the emotional needs of your kids and are genuinely involved in caretaking: potty training, homework, tantrums. You’re involved in a real, meaningful way.
What happens when an actively involved dad is faced with a contentious custody battle? Here are top five things that fathers should know before they set foot in a courtroom:
1. Fight as hard as you can to get the most time possible from the very start.
Whether you want the kids to live with you (as primary residential custodial parent) or you simply want to have an fair visitation access schedule, be clear about your goals and push for what you want. If you want equal time (or any decent amount of time), you need to push for more from the very beginning of the case.
Devise a strategy to demonstrate to the court that you understand your child’s routines, needs and care. Show why the schedule you are proposing is workable, realistic and in the “best interests of the child.” If you settle for a tiny “temporary” schedule and expect to fight for more later, you will find yourself fighting an uphill battle.
2. Find an attorney who gets it.
Many divorce lawyers just don’t understand why dads want more access time. You are dealing with a system that has historically favored mothers’ custody wishes, and is only now very slowly changing. You need an attorney who will understand your reasons and help you in presenting your best case.
How do you find a lawyer who gets it? Shop around: set up consultations with attorneys to see what their approach would be and how they respond to your end goal. Ask about other cases they have handled for active dads and creative solutions they have used. Read online reviews and get a feel for how attorneys respond to your questions in Q&A forums. If you feel like your lawyer is pushing you towards a bleak arrangement — push back. Make it clear to your attorney that you are not afraid of trial and help steer them away from the internal pressures for a hasty settlement. Unless you can live with that settlement, keep pushing to see the judge. Most importantly: find a lawyer who will help you fight for your goals from the start.
3. Do not bring child support issues up in custody conversations. Period.
Many people — even some lawyers — will assume you want more time with your kids because you want to pay less child support, even when faced with facts that you are the more nurturing parent. While some states tie access time to support California does not. No matter where you live, try to keep these issues separate. Otherwise, your reasons for spending time with your child get colored by the notion that you “just don’t want to pay.”
4. Draw your schedule. Literally.
Create a calendar grid labeled by the days of the week with what you propose for each parent. This is a highly effective tool because you might think “alternate weekends and Wednesday night dinner” doesn’t sound so bad. Draw it. You’ll see that the child will go seven days (twice a month!) without seeing dad at all. That’s an eternity to a young child accustomed to having dad around every day. Not only is drawing a persuasive tool for the court, but if can often help the other parent see the drawbacks as well. After all that’s seven straight days of no help from dad!
5. Be kind and considerate.
At the end of the day, once the lawyers are paid, the court hearings are over and the dust settles, you and your ex will be co-parenting your children. A vicious custody battle can the situation toxic going forward. Be reasonable and even giving on certain issues that are important to her. The long-term payoff might be a positive co-parenting relationship — and that will directly benefit your entire extended family for years to come.
