California Divorce Overview

California is a 'no-fault' divorce state, which means that when a spouse requests a divorce, they will not need to specify a reason or prove wrong-doing on part of the other. From time of initial filing, the soonest a divorce can be finalized is 6 months.

No-fault does not mean no disagreements, though. If you foresee that there may be disagreements regarding how the family assets are going to be handled, or how the kids will be cared for, get professional advice immediately.

Even if you both agree on how to separate your lives, it is important to have the agreement reviewed by a professional. An advisor who has been involved in many divorces can help you spot weaknesses in the agreement and will help ensure that the final agreement is strong and will last for many, many years.

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In most dissolution cases, a host of assets and liabilities must be accounted for and divided. Homes, cars, boats, snowmobiles, retirement plans, business interests and other "big ticket" items are usually placed on a balance sheet and allocated among the parties, with the spouse receiving more value paying the other a cash equalizer. But what about "the stuff" in your home?

Truth be told, the Court wants nothing to do with dividing items of personal property of nominal value. If parties can't agree on how to divide "the stuff" the judge will simply order everything auctioned and divide the sale proceeds. As you might expect, at auction you'll receive perhaps ten cents on the dollar. We're talking garage sale prices. Then, you, and your spouse, will have to turn right around and purchase another iron, toaster, DVD player and living room set. Makes little sense.

The good news is that there are tried and true processes that we have utilized in assisting couples through the division of "stuff." Here's what has worked for our clients:

• Two Lists: One of you makes two lists of items, of roughly equal value. The lists are presented to the other. The person who didn't draft the lists gets to pick which list they want. There is an incentive for the person drafting to fairly and equitably divide things or they'll get burned during the selection process.


• Silent Auction: This is my favorite. A master list of all of your personal property is created. Each party blindly puts a dollar value next to each item. The high bid takes the item at the value listed. Once all items are bid on, the totals for each party are added up. The party receiving the higher dollar value pays the other a cash equalizer to make up the other's shortfall. Parties are free to place a high value on items they really want, but won't list a ridiculous bid out of fear of paying a large offset.


• Arbitration: An arbitrator is basically a private judge. You pay this person, usually a lawyer, to listen to your side of things in an informal conference setting. Then, your spouse does the same. The arbitrator is given the authority to divide the entire list of items as they deem fair and equitable. Costs are saved because the parties attend the arbitration without counsel and divide the arbitrator's fee. Most couples submit to binding arbitration so that the decision of the arbitrator is final.


• Rotating Lists: Make a master list and take turns going back and fourth until all of the personal property is divided. Flip a coin to see who goes first.

The bottom line is that usually the personal property of the parties isn't worth the money that will be spent fighting over it. It's true... we've been caught in the middle of disputes over Christmas ornaments, but not by choice. By the time all was said and done, both parties could have purchased a collection of new decor with the legal fees they would have saved by putting down the swords and agreeing to a process that would fairly, and cost-effectively, get the issue of personal property division resolved.

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In California, the marital property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Superior Court Judge within the Final Judgment of Dissolution of Marriage.

California is considered a "Community Property" state. Community property is defined as all property and debt that was acquired from the date of marriage until the date of separation. Not every couple agrees with division of the property and when this occurs, the community assets will be split equally by the Superior Court if the spouses are unable to reach an agreement.

When dividing property for a dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This community property presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. (b) Proof that the parties have made a written agreement that the property is separate property.

There are some exceptions, when economic situations warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.

The court may also award, from a party's share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate.

Debts accumulated after the date of separation are treated as follows: (a) Debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties' respective needs and abilities to pay at the time the debt was incurred. (b) Debts incurred by either spouse for nonnecessaries of that spouse or children of the marriage for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt. (California Code - Sections: 2501, 2581, 2601, 2602, 2621, 2623, 2625, 2641)

Since California is a "Community Property" state, all marital property will be divided in a 50-50 fashion according to the court unless agreed to otherwise by the divorcing spouses. This means that everything that is considered "up for grabs" in the dissolution will be distributed equally to each spouse. Obviously this does not entail splitting a car in half so to speak, but rather each spouse will be rewarded with assets of equal value.

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