Overview
The Law Office of Howard L. Hibbard generally assists clients in divorce proceedings that do not involve minor children. Our office assists clients with the equitable division of property including, but not limited to: community property and separate property, real property, business interests, and other assets. Our attorneys seek to provide thoughtful analysis of each divorce proceeding and work with our clients to obtain realistic and fair resolutions without unnecessary fees or court appearances. If you have a question regarding property division in a divorce proceeding, please contact us for a free consultation.
General Information about Division of Property
Equitable division of property in a divorce proceeding does not necessarily mean a 50% – 50% split despite the fact that California is a community property state. Not all property is automatically classified as community property.
Equitable division of property includes a determination of the nature of the property, valuation of the property, and ultimately division of the property by “in kind” division, sale and division, cash-outs, etc. Under the Family Code, valuation is generally made at a time “as near as practicable” to the trial date and is determined at fair market value.
Types of Property
California is a community property state, however not all property owned by spouses is classified as community property. The categories of property outlined in the California Family Code are as follows:
Community Property consists of all property acquired during marriage and before separation, other than by gift or inheritance. This property is presumptively community property and thus divisible in divorce proceedings. Cal. Family Code §770(a), §760 and §771(a). Community property includes, but is not limited to: income, stock options, business profits, fringe benefits, accrued vacation pay and other incentives.
Separate Property belongs solely to the acquiring spouse, with few exceptions. There are several types of separate property outlined in the California Family Code:
(1) Property acquired prior to marriage, during marriage and traceable back to pre-marriage acquisition, or post-separation, including the rents and profits there from, are the spouse’s separate property and are not generally subject to division in a divorce. Cal. Family Code §770(a) (1) & (3).
(2) Property that is acquired as a gift, bequest, devise, or descent during marriage is the acquiring spouse’s separate property. Cal. Family Code §770(a) (2).
(3) Earnings and accumulations of a spouse after judgment of legal separation or while living separately are the acquiring spouses separate property. Cal. Family Code §771 and §772(a).
Exceptions to separate property classifications do exist. For example, community payment of a mortgage on a home that is one spouse’s separate property creates a community property interest for the non-owner spouse. The non-owner spouse accrues an interest of ½ of the monies paid toward the equity.
Quasi-Community Property covers two types to property: (1) real and personal property, wherever situated, which would have been community property had the owner spouse been living in California at the time of acquisition and; (2) any property acquired in exchange for such property. Cal. Family Code §125(a) & (b). This property is subject to division in a divorce proceeding.
This summary is not a complete statement of the law and additional issues may arise with regard to valuation, “like kind” divisions and property classification. Please contact us with any question regarding classification of property or to discuss the exceptions thereto.
Services We Provide
Our attorneys seek to lessen the burden of a divorce proceeding by helping our clients reach out of court settlement of property division issues. Services include, but are not limited to: (1) in depth assessment of property classifications and discussion of legal options, (2) negotiations to settle property disputes out of court, and (3) preparation of legal documents and in court representation as necessary. Please contact us for a free consultation.