Divorce and Your Property Rights
California law only recognizes no-fault divorces, meaning in California neither spouse is considered at fault for the dissolution of their marriage. The grounds for divorce in California are either: 1) Irreconcilable differences (Your marriage will not work and counseling will not help the marriage) or 2) Incurable Insanity (One spouse is medically deemed insane and remains incurably insane). Most Petitions for Dissolution are filed on the ground of irreconcilable differences.
If you are considering filing for divorce, there is a simplified process to consider – Summary Dissolution. In order to qualify, you need to be married for five years or less; have no children from the relationship; neither spouse should own real estate; the value of the community property should be $25,000 or less; your combined debt should not exceed $5,000; and both spouses choose to waive spousal support. Under this process the paperwork is less burthensome then the traditional process. If you don’t qualify, you must file for a regular Petition for Dissolution.
Another matter to consider if filing for divorce is the division of property and debts. California law recognizes that both spouses contribute significantly to a marriage. The property of the marriage is either labeled community property or separate property. Community Property is all property, real or personal, in or out of the state, that either you or your spouse acquired through labor or skill during the marriage. Each spouse owns one-half of all community property and it is divided equally unless otherwise agreed. This is true even if one spouse worked outside of the home and the other was a homemaker; or the property is only in one spouse’s name. For example, one spouse works for a large company and has a pension and profit-sharing benefit plan, the other spouse stays home with the children. The spouse that stays home has one-half interest in the other spouse’s pension and profit-sharing plan.
On the other hand, separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritance that was received either before or after your marriage; and gifts to you alone. Separate property is not divided during the dissolution. Problems with identifying separate property occur when separate property has been mixed with community property. For example, real property used as rental income is owned by husband prior to the marriage. After the marriage, husband takes the rental money and uses it for community living. Now the separate income has been commingled with the community.
With a few exceptions, debts incurred during the marriage are community debts, no matter in whose name the debt is incurred. These debts are divided equally unless otherwise agreed. One exception to the general rule is student loans; they are considered separate debts of the spouse who incurred the debt no matter when it was incurred. Another is debts incurred for the separate property; they will be deemed separate property debts.
When dealing with the division of property and debts, it can get very complicated. An attorney should be consulted to help identify community vs. separate property assets to properly give advice on the division of these assets and the payment of the community vs. separate debts.
This column is produced by Mary Der-Parseghian, Esq. For questions or comments, please send your message to 4727 Wilshire blvd., Suite 301, Los Angeles, CA 90010; E-mail: Mary@MaryDLaw.com or call at 323-937-2727. For additional articles please visit our webpage at www.MaryDLaw.com.
© 2011. Der-Parseghian Law Group