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Establishing what is community property during divorce

In community property states like California, all assets that belong to the community of both spouses are divided equally if and when the spouses file for divorce. Although there is a belief that assets obtained during marriage are community property, this presumption may be rebutted with sufficient evidence. For instance, if the deed or other evidence of a property title indicates that the acquired property belongs to one spouse alone, that property may be deemed to be separate.

Likewise, a party may show proof of a written agreement between the spouses acknowledging that an item of property belonged to one spouse alone. Otherwise, property acquired in joint form by two parties will be considered community property regardless of the form of tenancy. Since assets such as a home cannot easily be split in half, a judge may sometimes order the parties to sell the home in order to divide the profits equally. Alternatively, a judge may award an asset solely to one party if the judge feels that doing so would be best to ensure a substantially equal division of marital assets.

Debts can also be considered community property so long as the debts were incurred for the common necessities of life of one of the two spouses or their children. If a debt was incurred for non-necessities of that party or of the couple's children, a debt will be confirmed to that spouse without offset being required of the other party.

If two parties are able to reach an agreement about the division of property on their own, they may want to have their attorneys draft a Marital Settlement Agreement in order to avoid subjecting the division of property to a lengthy court process. If a divorce is not amicable, parties may need to go to court to litigate the issue of property division, and the parties may want to consult with an attorney prior to beginning the process.

Source: Divorce Support, "California Property Division Factors", September 15, 2014

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