Division of Property -Frequently Asked Questions
1. How does the family law court divide debt that my spouse and I acquired during our marriage?
Debt acquired during a couple’s marriage falls under the process of division of property, the same way an asset that was acquired during marriage. Community property includes both assets AND debts that are acquired during the marriage. It does not matter who acquired the debt or if the debt is in the name of one spouse. When the court divides community debt in a divorce or legal separation, the debt will be divided equally between the parties—each spouse will take a 50 percent interest in the debt. If the division of debt in your divorce will be an issue, it is important that you speak with one of Wallin & Klarich’s skilled division of property lawyers.
2. If I inherit a house during my marriage and we lived together in that house during our marriage, does my spouse have a claim of interest in the house
No, your spouse does not have a claim of interest in the house. Although the house was acquired during your marriage, any property that is inherited by a spouse is the separate property of the inheriting spouse. Thus, your spouse has a zero community property interest in the house.
3. Does my spouse have a community property interest in my car accident settlement?
If the car accident had occurred before you and your spouse were married, then the settlement is your sole and separate property. If the accident occurred during your marriage, then the settlement is community property. Even if the settlement is paid after you and your spouse are divorced or legally separated, the settlement paid is still community property. However, if the settlement is determined to be community property, the court has the ability to use its discretion and decide what portion of the settlement, if any, each party should be awarded. The family law courts will take into consideration the fact and circumstances of the accident and settlement, including the severity of the injuries and the amount of the settlement.
4. How do family law courts divide out-of-state property?
Property acquired outside the State of California is characterized as quasi-community property. Quasi-community property is property acquired during a marriage and the property is located in a state that does not recognize community property law. However, at the time of a divorce or legal separation, the property is treated like community property—as if it had been acquired in California. Therefore, the land, although in a different state, will be divided by the family law courts the same way it would divide any other community property acquired during the marriage. If you and your spouse have property that will be a part of your divorce, it is important you retain an experienced division of property lawyer from Wallin & Klarich.
5. Am I responsible for my spouse’s student loans?
Student loans acquired during marriage may not necessarily have to be divided equally between the parties. Generally, the student loan will be assigned for payment to the spouse who obtained the benefit of the education, unless the family law court determines that such an assignment would be unjust given the extent that the community benefited from the education. Thus, if the community did benefit from the spouse’s education, the court has the ability to use its discretion in dividing the student loan between the two parties.
6. Can my spouse and I agree during our marriage to change the character of our property from separate property to community property?
Yes, you and your spouse can agree during your marriage to change the character of your property. This is called transmutation. To transmute the character of you and your spouse’s property, the agreement must be in writing and signed by the party whose interest is adversely affected by the change in character. When transmuting the character of property from separate property to community property, or vice versa, it is very important you first meet with a family law attorney who can make sure the transmutation agreement is valid and will be enforceable in a divorce or legal separation.
7. I have a pension through my employment. Is this my separate property?
A pension that was accumulated during the marriage is subject to a community property division and can be divided by the family law court. The community interest in the pension will be in proportion to the length of the marriage. Therefore, if the pension accrued before the date of marriage and after the date of separation, you as the owner of the pension will also have a separate property interest in the pension.
Wallin & Klarich Division of Property Attorney
If you or someone you know is considering a divorce or legal separation, and has questions or concerns about any aspect about the legal process, including the division of property, you need a skilled and experienced family law attorney from Wallin & Klarich.
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