Frequently Asked Questions About Dividing Property In A California Divorce
At Song Family Law, APLC, I answer my clients questions about property division in California. Here are brief answers to questions I am frequently asked. The content on this page is for information only. For legal advice, please call my law firm for a consultation.
If a property is held jointly, can my spouse still claim it is separate property?
All property you acquired during your marriage is community property, subject to a 50-50 split upon divorce. However, under the Family Code section 2581, if the property is held jointly, your spouse may claim it is separate property if they have proof such as:
- In a written agreement with you that it is separate property
- A clear statement in the deed that it is separate property
- A clear statement in the deed that it is not community property
- Other documentary evidence of title
What if we purchased real estate during the marriage, but my spouse’s name is the only name on the deed?
Suppose you and your spouse purchased real estate during the marriage. Before you separated, the real estate was transferred over to one spouse and the deed now only names one spouse. The California Supreme Court has said that even though the title names only one spouse, there must be proof that the real estate property was transmuted, or its status properly changed to separate property, before the courts will consider it separate property. Properly changing the status can only be done by following very specific procedures. An experienced divorce lawyer should be consulted. But, divorcing parties should know that the deed is not the final answer to dividing real estate in a divorce. The presumption of title does not apply.
How do courts divide retirement?
Different types of retirements are handled differently in a divorce. Individual Retirement Accounts can be rolled over, but a pension or a 401(k) may need to be divided by QDRO.
A QDRO stands for Qualified Domestic Relations Order. A QDRO or DRO is a order that grants a person a portion of retirement benefits. A DRO is an order against a plan that is not qualified under certain federal statutes. DROs are typically issued against government plans.
Depending on the type of plan, a simple equal division may not be the best option for the parties. This is one area where you will need to consult with an experienced family law attorney.
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