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Property Division

According to California law, as a community property state, anything acquired during the marriage is divided equally. This does not mean that everything needs to be sold and the proceeds split. California’s “like in kind” concept allows for exceptions to this rule. For example, if the wife wants the house, furnishings and appliances, and the husband wants the garage, tools and equipment, if equal in value, they may each have what is of interest to them. The value will be determined by mutual agreement or adjudication by the court. An equalization payment will be made to offset any differences in the value of the items divided.

Retirement benefits are community property, even if one spouse earned the benefit along with any benefit acquired during the marriage to one spouse or the other. The issue of vesting often arises, such as “I’ve been in the retirement plan, but my employer says it is not vested” or “Now that I am getting divorced I don’t have to divide this with my spouse”. The employer’s definition of vested and the family courts’ definition of vested are different. If a spouse receives benefits from their employment, vested or not during the marriage, those benefits are deemed community property and are to be divided equally, as with all the assets acquired during the marriage.

Often, appraisals are done on antiques, and collectables and real property. Usually, however, the parties come to mutual agreement on household furnishings, appliances and knickknacks.

When filing for a dissolution action, one must also prepare a property disclosure declaration. The judgment of dissolution cannot be entered until both parties have exchanged property disclosure declarations. In this document, each spouse must declare to the other everything he/she thinks he/she acquired during the marriage and what his/her opinion is of its value. The property disclosure declaration is more for an inventory of assets than the value of the assets. There are two elements of a proper declaration; a preliminary declaration, and a final declaration. In a preliminary property declaration, the parties must disclose everything they know under their fiduciary duties to each other to act in good faith. If a party fails to disclose a bank account, hidden cash, the contents of a safety deposit box, or some asset unknown to the other spouse, he/she would be sanctioned for the value of those assets, if ever discovered. Each spouse has a fiduciary duty to the other to act in good faith, and to fully disclose.

The property disclosure declaration does not go to the court–proof of service to the other spouse goes to court. This means that once you have exchanged the documents with your spouse, proof you did such goes to the court, not the actual document itself.