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In a California dissolution of marriage, or a legal separation, all community property must be equally divided under California law. The parties may agree to an unequal division of community property. Your lawyer can suggest many productive ways to divide property equally and fairly and in a way that causes the least financial difficulties and hardships. Your lawyer can also suggest the best ways to structure a buyout by one party or the other.
The code of divorce laws in California says separate property, including bank accounts, real estate, cars, stocks and bonds, pension funds, IRAs and 401k, which were owned on the date of marriage by one party, is awarded entirely to the party who owned it. Sometimes there is a dispute under California community property law over what was owned on the date of marriage and what was acquired later. A lawyer can advise and counsel a party on how to prove whether property is separate or community.
Pension Division: Any employee benefit plan, including pensions, retirement funds, money-purchase plans, profit-sharing plans, 401k or any form of deferred earnings during marriage is usually divided equally under California property law. Any part of a fund of this type that was earned before or after marriage is separate property. The courts of California use the "time rule" to divide only the fraction of these accounts earned during marriage. For example, if a couple were married ten years and the employee-spouse worked for the company 30 years, the community property fraction would be 10/30 or 1/3 under California community property law. Each spouse would receive one half of the one third (1/6th) and the employee spouse would get the remaining (2/3rds).
If the parties agree in writing to keep all their separate property, as well as earnings and purchases during marriage, then California community property rules may not apply. This is a technical area of law best suited to one of the family law divorce lawyers in California.
A party can lie, and many do, even under oath. Such lies amount to "perjury", a crime. Will they be punished? Rarely. Do we use their lies against them? Frequently.
You can begin dividing property immediately after deciding to separate from your spouse. Credit cards can be destroyed or cancelled. Bank accounts immediately split into shares. Cars transferred to one title owner. Real estate can be refinanced or put on the market. But note: all steps must be done by mutual agreement in consultation with your California family lawyer. The filing of a California dissolution or legal separation places specific temporary restraints on some kinds of transactions and penalties apply to violating these restraints.
A competent advocate ensures that you get your due. You should not overpay for any asset in the division of property. This service alone can often more than justify the cost of experienced California family law counsel.
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Robert E. Kroll provides legal guidance in the State of California for child custody mediation, child custody laws, divorce laws, California child support laws, spousal support laws, legal wills, durable power of attorney forms, California probate codes, DUI and DMV and all aspects of California family codes.
Serving the San Francisco Bay Area for nearly two decades, including the East Bay, Alameda County, Berkeley, Oakland, Albany,
Alameda, Hayward, Martinez, Richmond, Contra Costa County, Marin County, and other California counties.
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