If you’re seeking a divorce in San Jose, it’s very likely you are interested in California’s laws covering the division of property. Next to issues involving child custody, this is typically the most hotly debated aspect of a divorce settlement.
California, like Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, is a community property state. This means that marital assets are either the equal property of both spouses or the separate property of just one individual. Community property laws in the United States are said to have been inherited from Mexico’s ganancial community system, which itself was derived from Spanish law.
California’s community property law states that the money each spouse earns during the marriage, as well as items purchased with those earnings, is considered community property. It does not matter if one spouse earns significantly more than the other; the courts consider the marital relationship an equal partnership.
Separate property includes gifts, inheritances, or personal injury awards received by just one spouse. The proceeds of a pension that vested before the couple married would also be considered separate property. A business owned by one spouse before the marriage remains separate property, but could be considered partial community property if either spouse worked at the business while they were married.
At first glance, it appears that determining whether something is community property or separate property should be relatively simple. However, trouble begins when separate property mixes with community property during the marriage through means such as a joint bank account or if one spouse uses the proceeds of an inheritance to purchase the family home. Separate property that mixes with community property may become classified as partially or entirely community property, depending upon the exact circumstances. Sometimes you might need to hire an expert accountant to trace the funds, and testify in Court about the source of the funds.
Since many assets acquired during your marriage are unlikely to be sold, keep in mind that the judge will award parties assets of equal cash value. If there is a specific item you are hoping to receive, you should discuss this issue with your San Jose divorce lawyer. If you have children from your marriage, however, it is most likely the parent with primary custody will be awarded the family home, with the other party receiving cash or other property to equalize the distribution.