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Which properties can be divided in a California divorce?

| Oct 12, 2014 | Property Division

When people in California divorce, they have the option of working out an equitable distribution of eligible property on their own. Not all property will be divided, however, as some categories will remain with one party or the other. Similarly, eligible property may not always be evenly divided between the parties since courts take certain factors into consideration when deciding how the property and debts will be divided.

If the spouses have a prenuptial agreement in place and the court finds it is valid, however, all property contained within the document will be ineligible for division. Separate property belongs to one party and it is not divided; it includes all property a spouse owned before the marriage, any rents derived from the property, all gifts made to one spouse and the income each spouse makes.

Under the state’s community property laws, all property acquired during the marriage is subject to division, including pensions, which require the completion of a qualified domestic relations order that allocates the amounts between the spouses upon the dissolution. The portion of the pension that accrued during the marriage is eligible, whereas the portion of a pension that was earned prior to the marriage is not. As previously stated, spouses have the choice of coming to an agreement regarding how the property they own and the debts they have acquired will be divided. Such agreements are called marital settlement agreements.

Many times, people are unable to agree on how to divide property. If that is the case, then a court will issue an order dividing it as the court sees fit. For high-asset cases, division can be especially complex. The above is not meant to be read as legal advice since each couple’s situation is unique and involves numerous financial and legal considerations. For this reason, divorcing individuals who require advice on how to divide assets like pensions or retirement accounts may do well to consult with a family law attorney.

Source: California Courts, “Dividing Property and Debts in a Divorce“, October 10, 2014