San Jose Family Lawyer Discusses Division of Property in a Divorce Whether a divorce is amicable or a battleground, the topic of property division can be a sensitive one. Many people are uncertain of what exactly they can ask for and subsequently make mistakes that affect their financial future. Some ask for too much, and they then seem greedy to their spouse, while others simply do not ask for things the law will surely get them. If there is a prenuptial or post-nuptial agreement it will need to be read carefully, as there could be property that is not covered under that document, or the document might not be enforceable. It is important to speak with a San Jose family lawyer before making an agreement about property division.
Community Property vs. Separate Property California is a community property state. According to the state’s Family Code, this means that money, assets or physical property acquired by either spouse during the marriage is legally presumed to be community property, and is the equal property of both spouses. This property can include the following:
Tax returns Retirement plans such as 401(k) and IRA Bonuses Investments Professional licenses Debt, regardless of which spouse accumulated it Real Estate purchased during the marriage Lottery winnings
Property that spouses acquired before marriage would generally be considered separate property. A divorce lawyer in San Jose would explain that separate property is generally not eligible for division. Spouses can receive things during a marriage that would be counted as separate property. These items include inheritances, gifts and compensation awards from personal injury litigation. There are multiple exceptions where separate property may become community property. For example, if a spouse owned a home before the marriage and then added the other person’s name to the deed, that home could be counted as community property. Even if the first spouse did not put the second spouse’s name on the deed, if the monthly mortgage payments were made from earnings during the marriage a community property interest can accrue. A family lawyer can describe to you how co-mingling and/or failing to keep good records can result in property that could be separate being adjudged community by the Court. Read Original Source