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and 2009Division of Property and Debts
Basically, a court may give each party his separate property and separate debts, than may divide the community property and debts in a manner that the court deems to be "just and right'. This may be an approximate 50/50 division of the net community estate, or a division which give one of the spouses a disproportionately large share of the community property (e.g., 70% to. spouse A, 30% to Spouse B). Contrary to popular belief, the courts are not required to divide property 50/50.
The division of property refers to the net community estate (i.e., all community property less all community debts equals net community estate). Obviously, this does not require an equal division in kind of all property and debts. For example, suppose that the community estate consists of one home (with a mortgage). three cars (two with mortgages), two retirement accounts, miscellaneous personal property (e.g., furniture), and five bank accounts. All together, this amounts to $100,000 in assets, and $75,000 in debts, for a net community estate of $25,000. The court may give husband 70% of all of the assets ($70,000) and 60% of all of the debts (460,000) for a net award to husband of $10,000 (which amounts to only 40% of the total net community estate). Simultaneously, the wife would receive only 30% of the assets ($30,000), but only 20% of the debts ($15,000), for a net to wife of $15,000 (which equals 50% of the total net community estate). Again, this is only a very simple example. Courts may enter almost any kind of order to effectuate what the court finds to be a just and right division, such as requiring the parties to sell the marital home and divide the proceeds in a certain manner, award certain community property to be held by both parties (and let them decide later to sell it or not to sell it), etc.
As a general rule of thumb, in order to reach a "just and right' division
of the community estate, the court generally begins by presuming that a
50/50 division would be equitable, then varies from there based upon a
number of factors, especially' the length of marriage, a disparity in the
earning capacity of the parties caused by the marriage (e.g., husband worked
for 25 years while wife did not), whether there are minor or adult children
being taken care of by a spouse, "fault in the breakup of the
marriage, etc. As discussed in some detail below, the very nature of divorce
cases makes it difficult to predict in advance with any degree of certainty
exactly how a given court will divide this property in a given case on
a given day.
This
article was adapted from the work of California attorney, Glenn
Rabenn, whose permission to do so is greatly appreciated.