Tinero, Aharonov and Associates Tinero, Aharonov and Associates A Family Law Practice, LLP

Community property does not always mean equal property division

One of the biggest issues in any California divorce is the division of the property that couples acquired during their marriages. Judges use a variety of factors to determine property division issues. Even though this is a community property state, there is no guarantee that a couple's assets will be split equally. The family's circumstances will play a part in who is awarded what marital assets, and that could mean that one party receives more than the other does.

Three primary factors are taken into consideration by the courts. The first is each party's ability to earn sufficient income to live. If there are children involved, the judge will consider the needs of the custodial parents. The last main consideration is whether there are any fault grounds alleged in the divorce such as abuse or adultery.

Many issues can affect a party's capacity to earn an income. Health conditions, the age of the parties and the employment opportunities available to each party are taken into consideration. If these factors create a disparity in income, the disadvantaged party may receive more than 50 percent of the marital estate.

If one party stands to lose certain benefits due to the divorce, the court may attempt to compensate for that fact. Furthermore, as the primary custodian of any minor children, that parent may require additional assets in order to adequately provide for the children. Finally, the circumstances surrounding the end of the marriage such as an affair and/or domestic violence could result in the court giving a disproportionate amount of the parties' assets to the victim.

Even though California law stipulates an equal split of the marital assets, judges have some discretion based on the facts pertaining to a particular couple's situation. Establishing a reason to give one party more property than the other requires convincing evidence. Due to this, the parties should not wade into the property division portion of the divorce alone. Having knowledgeable assistance with the process could be invaluable.

Source: FindLaw, "Community Property Overview", Accessed on Dec. 7, 2015

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