What Are the Different Ways for Property to Be Divided in a Divorce?

By | October 17, 2016

One of the perks of living in a country that is divided into a handful of independent states, like the United States, is that the individual states have the ability to try out different sets of laws to see which ones work better than others for their own state’s citizens. In this way, the United States government lets individual states try things out, giving the other states the opportunity to see if a change in the law works or not without being the one to conduct the experiment.

A great example of how this works is the legalization of marijuana. Washington and Colorado legalized the drug, and other states, including California, have been paying close attention to how things turn out before reconsidering the issue in our own states.

The Different Property Distribution Systems in the U.S.

This idea does not only apply to marijuana, though. Numerous aspects of the law are different in one state than they are in another. Divorce law is no exception to this rule.

One of the biggest pieces of a divorce is property distribution, which deals with which spouse gets what piece of property after they become legally separated. The idea underlying this issue is how a marriage is legally structured: When two people become married, are the new spouses technically one person, in the eyes of the law? Or is there still some amount of distinction between the two?

Most states follow the idea that spouses, even though they are married, are still legally distinct people under marital law. Without adopting the bright line rule that spouses are one person, this complicates things when spouses want to get a divorce from each other. Instead of divorce courts being able to just apply a simple rule, it requires them to look closely at the unique relationship between the spouses during the marriage in order to come up with a precise plan on how to distribute the couple’s marital property. This plan aims to distribute the couple’s property as fairly as possible, and so is called equitable distribution.

Not all states have adopted equitable distribution as the way of dividing marital property during a divorce. This is because some states have decided not to look at the uniqueness of a marital relationship, and instead follow the theory that spouses are the same person in the eyes of the law.

The Community Property Idea

California is one of the few states that does not follow the notion of equitable distribution, and instead follows the idea that married spouses constitute a single entity.

The practical impact of this idea is that, when a married couple decides to split up, the one whole entity becomes two halves again. Therefore, the property that the couple has accumulated during the marriage – which they had gained when they were united as a single legal being – gets split in half, as well.

Not very many states in the U.S. follow the rule of community property. Only Louisiana, Texas, New Mexico, Arizona, Nevada, Idaho, Washington, Wisconsin, and California have adopted this rule for divorce. One of the reasons why these states use the rule of community property is that they all had strong Mexican and Spanish influence in their formative years, when many of their laws were written. Under Spanish law, when a married couple divorced, both ex-spouses received half of the property that they had built as a couple.

Community Property in California is Only a Presumption

In California, however, the courts do not rigidly follow the rule that marital property is supposed to be split half and half between the spouses. Such an inflexible rule has often made for unfair results in some cases.

Instead of blindly following the equal split of marital property, California divorce courts operate under the presumption that all marital property owned by a divorcing couple is communal property, which gets split between the two equally. While this is a strong presumption, however, it can be overcome with evidence that the property in question, for example, was actually obtained before the marriage began, or was subject to a valid prenuptial agreement. If you are able to show this to the court and meet your burden of persuasion, then the court will determine that the property at issue is not marital property, and therefore not subject to the rule that would have split it equally between you and your spouse.

Why This Matters

The reason why it is important to know that California uses the community property way of distributing marital property, rather than the equitable distribution method, is that it impacts what you can do while you are in a pending divorce in the state of California.

Until the divorce is finalized, you and your spouse are still technically married. Therefore, all of your marital property is still both of yours, and so cannot be dealt with, sold, or given away by either of you without the knowledge or consent of the other one. To ensure that this is followed, the divorce court will temporarily create restrictions that make it legally costly to transfer marital property without your spouse’s knowledge or consent.

About The Author

Steven Fernandez is “divorce attorney” and co-founder of Fernandez & Karney, a Los Angeles, CA family law firm. Mr. Fernandez is a Certified Family Law Specialist with over 27 years experience. He handles all family law related matters including divorce, child custody, child support, spousal support, and complex property division matters. 


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