Bay Area Divorces © 2017 ALL RIGHTS RESERVED

Palo Alto Office - by appt only
3000 El Camino Real, Building 4 

Palo Alto, CA 94306
(888) 791-0033

Disclaimer:  The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult with an attorney regarding your individual situation. We invite you to contact us or schedule a consultation through our online scheduling system. Contacting us does not create an attorney-client relationship. Please do not send any confidential information until we have established an attorney-client relationship.

San Jose Office - by appt only
1100 Lincoln Avenue, Suite 239

San Jose, CA 95125
(408) 834-7478

Redwood Shores - Main Office
303 Twin Dolphin Drive, 6th Floor
Redwood City, CA 94065
(650) 331-3475

PROPERTY (Asset and Debt) Division

California is a Community Property State. This means that all property and debts acquired during marriage are presumed to be community property and are divided equally upon divorce, unless both parties mutually agree otherwise.  This presumption of community property, however, can be rebutted through evidence or a showing that the item is separate property.  The spouse who contends that an asset is his or her separate property has the burden of proof.

Community Property - Community property is all property acquired by a married person during marriage, including out-of-state assets.

Earnings - Income earned from a spouse's labor, time or skill from the Date of Marriage to the Date of Separation is community property.

Separate Property - Separate property is all property owned before marriage, property acquired during marriage by gift or inheritance, and property acquired after separation.

Time of Acquisition - A community property interest may only be acquired during marriage and before separation.  A spouse's community property interest begins at the time the property was acquired.

Premarital Acquisitions - Property acquired before marriage is the acquiring spouse's separate property, as is property obtained during marriage that can be traced to a premarital asset.

Post separation Acquisitions - A spouse's earnings after a separation are generally his or her separate property.

Pensions and Retirement Benefits - Pension and retirement benefits earned during marriage are community property, even if they are paid after separation or divorce.

Equal Division -  A judge must divide the community property equally, including the community debts.   The parties, however, may settle and agree to divide the community property assets and debts unequally and in any manner that they both agree with.

Separate Debts - Any debt entered into before marriage or after separation is considered separate property and will only belong to the spouse who acquired the debt.

Community Debts - Debt acquired during marriage is a community debt shared by the spouses.  Awarding the debt at divorce, however, does not release the ex-spouse from liability with the creditors as the creditors are not parties to the divorce case.  Usually, a court can order one spouse to pay a debt and indemnify the other spouse.  

When filing for divorce or legal separation, the parties must exchange a Schedule of Assets and Debts form, or similar forms, to disclose all of the party’s community and separate assets and debts.  Property can be divided through the parties' agreement or by court order.  Property is divided by awarding it to one spouse,  selling it and dividing the value, or by having one spouse buy out the other spouse.