Division of Community Property

Under California Family Code Section 2010, in a marriage dissolution, legal separation of nullity proceeding, the court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning the settlement of the property rights of the parties.

To give the court the power to divide the property, all property must be listed in the petition, response, or subsequent pleadings.

The parties to a marriage dissolution or legal separation are required to complete two stage declaration disclosure requirements disclosing all martial assets and liabilities before there can be an agreement or court order regarding division. In the disclosures both parties must include all assets and debts, whether they are separate or community property. This must be completed to ensure an accurate division of the property and to give both parties full knowledge of everything that is to be divided. If an asset or debt is not included in the disclosure and thus not divided in the Judgment, the family law court has continuing jurisdiction to divide the assets or debts not previously included in the Judgment.

If the parties are not in agreement as to the division of the property, with stipulation by the parties, the court has the authority to value and divide the community estate in a marital proceeding.

With a few exceptions, trial courts are bound to divide the community estate equally between the parties. However, if the parties have a written agreement or oral stipulation in open court, the parties are free to divide the community estate in any way they desire. The agreement must be based on a complete and accurate understanding of the existence of and value of the community and separate assets. The court must accept the parties written agreements and oral stipulations in open court regarding the disposition of their property. In that case, the courts only role with regard to disposition of marital property is to incorporate the disposition into the Judgment.

When the parties cannot agree and the property division issues are before the court, the court must divide the assets and debts equally. The court may not look to fault in dissolving the marriage or dividing the property. The parties may agree to waive the equal division requirement by written agreement or oral stipulation in open court. The Family Code specifies narrow circumstances in which the community assets and debts need not be divided equally.