Before dividing your community property, assets & debts, determine what is community property and what is separate property. It’s easy to look up law code, this is public information.
Family Law §760: Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
Family Law §770(a) describes separate property of a married person includes all of the following:
(1) All property owned by the person before marriage. (2) All property acquired by the person during marriage by gift, bequest, devise, or descent. (3) The rents, issues, and profits of the property described in this section.
Family Law §771 further addresses separate property:
(a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, after the date of separation of the spouses, are the separate property of the spouse.
Speaking in layman’s terms: any property you already had before you were married, property you acquired after the date of separation , and any property that was given to you as a personal gift or inheritance is considered your separate property. Anything accumulated during marriage or purchased with income earned during marriage (doesn’t matter who eared it) is considered community property and should be divided equally.
So your spouse says to you: “This is my house, I paid for it”… but it was purchased during marriage with income earned during marriage. Even if you are not on title, you can say to your spouse: ”Not so fast”. But what if the down payment on the house came from one spouse’s separate source, such as savings earned prior to marriage or inheritance? What if the house was purchased prior to marriage but mortgage payments were made during marriage with community funds? There are countless different nuances to dividing community property; it’s not black and white. We look at each situation of community property, assets & debts, individually and help you arrive at a solution that takes both your positions into consideration. Or you can hire attorneys and end up selling your house to pay for attorney fees.
The same rule applies to debt. After all, community property is considered Assets and Debts. So any debt incurred between date of marriage and date of separation is (theoretically) considered community debt and both parties are equally responsible for it. Theoretically! But what if you have been bugging your spouse for years not to drink and drive and your spouse keeps doing it and finally gets a DUI. Should you be on the hook for half of that fine? What if your spouse says:” You drove me to drinking…” This is where the letter of the law and fairness may take separate paths. This is where mediation comes in. We talk about humility and taking responsibility for one’s actions and come up with a compromise both of you can live with. What’s the alternative? You hire attorneys and have them fight it out and potentially spend twice that fine you are fighting over on attorney fees.