When we work with clients on dividing up marital property, our first consideration during the triage stage is the children. Alongside child support, we want to be sure that the division of property will benefit the children financially. We also urge parents to look at the children’s needs extending beyond the standard costs of supporting them. (For example, if the children are struggling to come to grips with the divorce itself, perhaps the parents would be willing to liquidate some assets to help pay for therapy.) Once we’ve evaluated the children’s needs, we encourage couples to negotiate, discuss and compromise so that the rest of the property is divided in a way that each spouse can live with the results.
In addition to prioritizing the well-being of minor children when dividing marital assets, our firm also understands the importance of ensuring that the property division is fair and equitable for the adult parties involved. You have added real value to your marriage, and you deserve to recoup some of that value when the marriage breaks down and fails. This is essential so that you and your children will be well-positioned for success and growth as you start this fresh new chapter in your life.
Dividing assets fairly and in accordance with the law requires taking into account many factors, such as each spouse’s contributions to the marriage, both in terms of finances and those less tangible, but equally important, contributions like raising the children or providing the day-to-day logistical and clerical support required for any busy household to function. Beyond that, the court must also consider:
There are many aspects to the process of dividing community property and calculating alimony in California. It can be overwhelming for those with no formal legal training to try to fully understand these processes and equations to ensure they are being treated fairly in court. This is where a good family lawyer can be an invaluable resource. Your Orange County property division attorney can assist you through this complex process:
At the Law Offices of Hollie A. Lemkin, APC, we understand that divorce can be a complex and emotional process. These heightened emotions tend to be especially present when dividing marital property. This is understandable—who walks away with which assets after a divorce can have major consequences for a divorcee’s lifestyle and their ability to start over. We strive to provide each one of our clients with personalized guidance and support focused on empathy and quality legal strategies, so they can make informed legal decisions that will benefit them (and their minor children). Our reputation is anchored by our commitment to helping our clients achieve a fair and equitable resolution to their divorce cases while minimizing conflict and stress to the greatest possible extent.
Perhaps one reason property division is a hot-button issue is that California is one of only a few states that follow community property rules when dividing marital assets. Unlike other states that use equitable distribution rules according to how much a spouse brought to the marriage, California considers all marital property as belonging to both spouses equally, no matter who earned it or brought it to the marriage. This makes it easy enough for the judge overseeing the case, but it can create friction between spouses, as much for sentimental attachments as for a general sense of fairness.
At the Law Offices of Hollie A. Lemkin, APC, you can talk to an Orange County property division lawyer that understands that the community property paradigm in California divorces can make property division—an emotionally taxing process in any state—one of the most difficult and contentious aspects of a California divorce.
Splitting anything acquired during the marriage 50/50 seems simple enough, but spouses routinely disagree about parts of this process, such as the classification of certain assets as community versus separate property. You (and your respective legal teams) might also have different interpretations of what constitutes an “equal” distribution of property once things like shared homes and vehicles have been liquidated. For these reasons and more, it is crucial to work with an experienced California divorce attorney who can provide objective guidance and advocate for your rights at every step.
Community property laws do not necessarily mean that resources will always be divided exactly equally between spouses. For example, child support and spousal support orders are key factors in determining which resources each half of the newly split household will get. Marital debts will also need to be divided, just like marital assets. The overall goal of the divorce process, from the state’s perspective, is not a strict 50/50 split. Rather, it is to achieve a fair and equitable division that will be sustainable for everyone involved, based on each spouse’s contributions to the marriage, their current financial situations, and many other relevant factors—most crucially, the needs of any minor children affected by the marriage.
Our attorneys are skilled in negotiation, mediation, and other tools that can help keep this process out of court to the greatest extent possible, so that you and your family can maintain the greatest possible control over your property and assets throughout the process of splitting them up. If a fair settlement cannot be reached through negotiation or mediation, we are fully prepared to aggressively advocate for our clients’ interests in court.
California is a community property state, meaning that all marital property is split 50/50 in a divorce (unless the parties come to some alternate agreement outside of court). This means a distinction must be made between separate property and marital property before assets can be divided. Separate property refers to assets that are owned by one spouse outright. In California, separate property is not subject to division during a divorce. Anything else is going to be considered a jointly held marital asset. If you are worried about an ex-spouse trying to access property or accounts that rightfully belong to you, it is important to keep exhaustive records and documentation to prove that an asset is your separately and individually held property. In certain cases, separate property can become community property if it gets commingled with marital funds or used for “marital purposes.”
Yes, property division in California is based on the principle of community property, which means that marital property is going to be divided 50/50 unless some other legally binding arrangement is made, such as out-of-court negotiations or the existence of a prenuptial agreement stipulating a different split. Obviously, assets like a house or a car cannot physically be “split 50/50” and still hold their value. Therefore, a 50/50 split in the total value of marital assets is awarded to each party rather than a literal 50/50 division of each individual asset. For example, the spouse who retains primary custody of the children might be awarded a shared home, while the other spouse is awarded the funds in jointly held investment accounts totaling the home’s value.
Although each spouse should walk away with an equal portion of marital assets after a California divorce, neither spouse is “entitled” to the shared home by default. Who gets awarded the marital home after divorce depends on several factors, including:
In some cases, one spouse may be awarded the house, while the other receives other marital assets of comparable value. In other cases, neither spouse will get to keep the home. The home may be the only asset of value in a case, making it impossible to split assets without selling the home.
Property owned outright by one spouse prior to the marriage is considered separate property in California and is therefore not subject to division during a divorce. However, this is not always absolute. For example, if the asset increases in value during the marriage, the margin of that increase may be considered community property and therefore subject to division. If the asset gets commingled with marital funds, used for marital purposes, or is not adequately documented as separate property, it may also lose its status as separate property and become community property in the court’s eyes.
Hollie Lemkin is the daughter, granddaughter, sister, and aunt to lawyers. She knows that Family Law is about more than winning. It is about inflicting the least amount of collateral damage on your children and putting your family in the most advisable possible position moving forward. A passionate trial lawyer, she will never back down from a fight.
She is exactly the attorney you want in your corner.
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