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Division of Property in a Divorce: Who Gets What?

division of property

A divorce can result in one of two outcomes: (1) you mutually end it and are on good terms with each other, or (2) you get into a legal and complex dispute about who should get what. In any case, going through the divorce process is both physically and psychologically taxing—things like who gets custody of the children, or the division of properties come into play. Even if you parted on good terms, what is fair to each of you is subjective. So what if the case is complicated rather than straightforward. How do you two reach an agreement on topics like property division? State law specifies how property is split, either equally or equitably, in the event of a divorce.

This article will lay out the basics in the division of property in a divorce. Like what kind of property has either of you bought or brought into and during the marriage. At the end of this article, it is important for you to take the first step – hire a lawyer specializing in divorce, specifically property division. 

With 805 Law Group’s over 20 years of experience in providing legal assistance to families in Atascadero and throughout San Luis Obispo County, you can expect reliable and personalized legal representation from our competent family law attorneys. 

What constitutes property?

Before we delve into the complexities of dividing properties, we should first go back to the basics. 

Many couples are unsure about what constitutes property. The Judicial Council of California defines property as “items that can be purchased or sold.” Clothing, a house, a car, furniture, land properties, and so on are examples of this. However, property may also refer to anything that has monetary worth, such as a business, patent, stocks, pension plans, bank accounts, and so on.

What kind of property do you own?

Now that you know what constitutes property, it is best to know the types of properties there are. When dividing property, it always depends on the type of property you hold. This may be either community property or separate property.

  • Community Property (also known as Marital Property)

Properties that are classified under this are those owned by the couple. This includes everything that either of you bought or got while you were married or in a domestic partnership. 

To easily know how to classify your properties, you may look at the source of the money. Let’s imagine one of you bought a house using the money you earned during your marriage. If this is the case, the residence falls under the category of community property. It is also important to note that earnings used in buying anything or even investing in something during your marriage are considered to be a part of community property. 

Incidentally, only a few individuals are aware that pension plans are included in this category. Financial liabilities, including debts incurred during your marriage, might also be classified as community property. In such cases, it is better to get a property division attorney to ensure that you get what you deserve.

  • Separate Property

You must keep track of the dates of your marriage and separation in order to determine what items are considered separate property.

Separate property is defined as everything obtained or inherited by either of you prior to your marriage. These properties are either yours or your partner’s. This may include inheritances from family or presents from others, but they should all be obtained before the marriage.

For example, you may use your inheritance to construct an apartment. So, if you decide to divorce, the apartment building and the revenues associated with it will be deemed separate property and will not be shared between the two of you.

However, there is an exception to the above rule. It should be highlighted that when separate properties are merged with community (marital) properties, the result is essentially the latter. So, when you buy a property with your pre-marriage inheritance and your earnings during your marriage, they will be treated as a community rather than a separate asset.

How will your property be divided?

In some divorce cases, when a divorce ends in good terms, couples can have a settlement agreement on who should get what, which in this case, there is no need for mediation coming from the court. But, if things are the opposite, then you can seek court mediation.

The courts usually determine how the properties will be divided using two ways: community property or equitable distribution. It must also be noted that in the dividing of properties, it will depend on which state you live in. States like Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin follow the Community Property division while, on the other hand, the remaining states (except for Alaska, South Dakota, and Tennessee) follow the Equitable distribution.

  • Community Property

Property is shared equally under this approach because both partners are regarded to have joint ownership of all property (including assets and debts) acquired during the marriage.

In summary, whatever that falls under community property (marital property) is shared equally. However, separate properties are not included in these divisions.

  • Equitable Distribution

This way of dividing properties in a divorce revolves around the principle of equity (what is fair). When splitting the properties, the court will decide who should get the most from the (marital) properties.

Under such division, there are a lot of things that should be considered, such as:

  • Both spouses’ well-being
  • Who gets custodial rights
  • A spouse’s contribution to the household (for example, a housewife who foregoes a job for the sake of her husband)

It must also be noted that this is not usually restricted to physical division in dividing your properties. In some divorce cases, the court may decide to grant each spouse a percentage of the property’s total value.

Is it possible to divide the properties ourselves?

You certainly can. In certain circumstances of the marital divorce, partners take it upon themselves to equitably/equally share the property. If this is the case, here are a few things that you might consider: 

  1. Make a list of all of your properties, assets, and debts. Both of you should try to make a list of things that you think should be divided between the both of you.
  2. It would be best if you classified whether it is a community or separate property. This would make things easier for both of you because you already know what properties should be equitably divided.
  3. Make sure that the community property is divided fairly and equitably. Even though both of you are in the process of dissolving your marriage, it is still important to hold a sense of fairness. When your partner needs more shares of the properties due to some valid instances (e.g., if one of you has a medical condition and needs money to cover the bills), it is better to give more to them. 

Let our experienced divorce attorney aid you in dividing your property.

Going through the divorce process is already difficult for the people involved. If such things may happen, it is important for you to seek help from experienced divorce attorneys who will fight for what you deserve. Even if you both parted on good terms, it is still important to seek the assistance of property division lawyers.

We at 805 Law Group will make certain that you receive what is fair to you during division of property in divorce. We will fight for you to have a financially solid life after your divorce. We will work out a fair settlement or equitable division of the marital assets.  Schedule a consultation with our helpful divorce attorneys now using our online form.