What Am I Entitled To In A Divorce?

Property

At the time of a divorce, each party is entitled to an equal division of the property and debts acquired during the marriage. This includes: real property, retirement and other employment benefits, household furnishings, and other assets the parties acquired. The property may be sold and the proceeds divided equally, or divided "in-kind" which means, for example, one party may be awarded the house and its equity and the other party may be awarded the retirement benefits if they are substantially equal in value. The division of property may take many shapes and directions; however, the ultimate goal is for an equal division of all of the community assets and obligations of the parties.

Custody

Depending on the circumstances of the case, each party is entitled to significant periods of parenting time with their children and input into major decisions affecting the children, including education, religion and non-emergency medical procedures. Further depending on several factors, one of the parties may be entitled to child support and spousal support, and an award of attorney's fees.

Community And Separate Property

To understand community property it helps to know what is defined as separate property. Generally speaking, separate property includes assets and debts acquired by a spouse prior to marriage or after the date of separation, or acquired during the marriage by gift (including gifts from one spouse to the other) or inheritance. Community property generally includes assets and debts acquired or incurred during the marriage up to the date of separation.

In California, the date of separation is important because the "community" ends on that date and therefore any property a spouse acquires after that date, including a salary from a job, is assumed to be that spouse's separate property. The date of separation is when one or both parties no longer desires to continue with the marriage, communicates that intent to the other spouse and actually takes action to physically separate from the other spouse. The date of separation is a factual issue that most spouses agree on, but sometimes it can be litigated if it impacts the characterization of a significant asset or debt.

An asset or debt could be a combination of separate and community property. For example: if one person owns a house prior to marriage and then during marriage payments are made on the house, technically speaking, the other party has acquired a community property interest in that house, the extent of which must then be determined. Title to property and commingling or joining of assets may also confuse the true nature of property. It is very important that parties consult with an attorney prior to changing the title on property.

To learn more about community property, separate property, and custody in California please contact the family law lawyers at Bartholomew & Wasznicky LLP.