Will Property Ever Be Unequally Distributed? / by Cassandra Hearn

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Couples work for years building their futures together. This necessarily includes building assets and making strategic financial decisions to ensure a secure future. Both spouses typically participate, either directly or indirectly, in the process of acquiring a home, furnishing that home, and building retirement resources. Upon divorce, the parties will obviously no longer share the same future, and the assets they have worked so hard to build must be divided. California is one of nine community property states. This means that upon divorce, the trial court will make a completely equal split of the community’s assets and debts. There are a few situations in which property may not be completely equally distributed, however, and divorcing spouses need to be aware of these potential issues.

In a divorce, the marital property will be equally divided by the divorce court. Yet, separate property is not subject to division at all—regardless of how large the asset is. Separate property is property acquired before the marriage, or property acquired during the marriage by just one spouse if it was acquired through inheritance or a gift. Some types of personal injury awards are also considered separate property. If one party can demonstrate that property is, in fact, separate property, then that spouse will take that entire asset, free and clear of any claim from the other spouse.

In addition, the parties can elect to come to an agreement to divide the property in whatever way they choose. It is getting more common for parties to settle before a final divorce trial, and one reason is that the parties maintain much more control over how assets are distributed. Changing the division of marital assets can have major tax implications, and an unequal distribution can also help “compensate” for a smaller or even complete absences of an award of spousal support. In general, if the parties agree to an unequal division of assets in a properly executed property settlement agreement, the court will not disturb the parties’ agreement.

Property division is a crucial element of any divorce, and you need an experienced attorney to help you with your options. Call us today at (619) 800-0384 and we can discuss your case.