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How are assets divided in a California divorce?

California is one of a very few states that uses a "community property" standard to determine how to divide property in a divorce. The law requires any assets that were gathered during the marriage to be split as close to 50-50 as possible.

This brings up several questions: What can be considered assets? What is separate property versus community (marital) property? How does a judge handle a tricky division like a pension?

What is 'property'?

Property is anything that can be sold, such as a house, rental property or vehicle. Property is also anything that has value like a bank account, investments, stocks, pensions, retirement plans, cash, a business or a patent.

Anything owned by both spouses is considered community property. Any property brought into the marriage by one spouse, kept under that spouse's name and not comingled with the other spouse in any way can remain separate property.

Inheritance and gifts, if they were not comingled, can remain separate property, as can a personal injury settlement and any items specified in a prenuptial agreement.

Dividing a pension

One of the trickier aspects of community property is dividing a pension into community property.

The first task is to determine how much the pension is worth. This is difficult since a pension's full value won't be exactly known until the spouse retires. However, the pension administrator can make a good-faith estimate.

A judge will also consider the number of years in the pension and how many of those years occurred during the marriage. The judge must also determine the employee and employer contributions to the pension, along with cost of living adjustments.

Since a pension belongs to one person only, a judge must issue a qualified domestic relations order (QDRO) that requires the pension administrator to make payments to the ex-spouse. Since these payments likely won't begin until the spouse retires, the ex-spouse may negotiate for a lump-sum payment or a greater share of other community property.

Because all these aspects of a divorce are complicated, it is in your best interest to seek the advice of a qualified, experienced attorney before you file divorce paperwork.

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