It is bad enough that the marriage has ended. You feel defeated-like a failure. It is hard to see now that you will recover from this divorce. To add insult to injury, you now have to divide your house and your stuff. You worked hard for what you have. Who gets what? Do you even have any say in what you will get to keep? Will you be able to keep the house? Can you force your spouse to sell it? What happens to the pension and the student loans? The thought of having to move is overwhelming. You need someone who has been through the process before to sort this all out. Below is some information to help you understand the laws surrounding California property.
California is a community property state. Each spouse has the right to one-half of all community property. Anything acquired during the marriage through time, effort or skill is community property.
Property rights are determined by examining how and when money was earned. If one spouse stays home during the marriage and the other works, each spouse has a right to half the paycheck. If the working spouse deposits that money in a bank account held in his or her name only, the paycheck is still a community asset even though one spouse has no access to the money. This rule only applies to money earned during marriage and not after separation.
In the same manner, debt incurred during the marriage is community. Loans taken out during the marriage are community debts, even if the debt is only held in one spouse’s name.
Because an inheritance is a gift, it is not earned through time, effort or skill and is not a community asset.
Calculating the Division
A simplified way to understand how property is divided is to add up all the assets and debts of the marriage. This will result in either a positive or negative dollar figure. Each party should end up with half of the total. Pension plans are divided separately (as discussed below).
Credit Card Debt
Frequently, spouses share credit card accounts. Although both parties are responsible for half of any credit card debt incurred during the marriage, frequently, one party cannot, or will not, pay his or her portion of the debt.
Student loans are always the separate debt of the spouse who incurred them, even if the debt was incurred during the marriage. The exception is parent loans. These are a community obligation even if only one spouse guaranteed the loan.
Dividing the Pension
Monies paid into retirement and pension accounts during the marriage are community property. Each party is entitled to one-half the community interest in the pension plans (including (IRA’s and 401k accounts). Monies paid into the plan before marriage or after the parties’ separation is the contributing spouse’s separate property.