San Diego Property Division Attorney | Property Division Divorce

In a California divorce case, property division is generally accomplished in one of three ways:

The parties may reach an agreement regarding property division either on their own or with the assistance of counsel which is memorialized in a Marital Settlement Agreement and filed with the court.
The parties may participate in a formal alternate dispute resolution process such as mediation and agree to division of property which is memorialized in a Marital Settlement Agreement and filed with the court.
If the parties are unable to reach an agreement on all or any of their property, the court will make orders for property division following a hearing or trial.

California is a community property state. If the court is making orders for division of property because the parties were unable to resolve their disputes, the court must follow the guidelines of the California Family Code and will divide all community property equally between the parties. If either party alleges a particular asset or debt is separate property, that issue will be adjudicated. Generally, separate property is defined as all property acquired before the marriage, after the date of separation, or during the marriage by gift, devise, or bequest.

Although the general rules of property division appear clear and simple, oftentimes unique factors can make the decision more complex. For example, if one spouse purchased a home prior to marriage, the general rules would state that the home is the separate property of the purchasing spouse. However, the case becomes more complex if the parties used community property funds (income of either party) to make mortgage payments on the property which reduce the principal owed on the loan encumbering it.

Another complicating factor could be the refinancing of the separate property home during the marriage. During the refinance process or even separate from it, the parties may execute certain deeds regarding a separate property home which may impact characterization and reimbursement rights. The same type of complications can apply to a business owned by a spouse prior to marriage. If a business increases in value during the marriage, a community property interest may be established in the business.