Property Division in a Divorce

Introduction

In California, what happens to property in a divorce? It depends on several factors. Key questions to answer in order to understand how items will be distributed are:

• Did a spouse acquire property before the marriage?
• Did a spouse inherit property?
• How long did the marriage last?

In the following sections, we provide details about: community property vs separate property, what happens when a judge must decide how property is divided, and how the length of the marriage may impact a judge’s decision in terms of what is considered community property.

Please note that even though this post provides information about property division, it doesn’t cover everything. On some topics, it examines only the more straight-forward situations.

Because of this, your path to achieving the best outcome in your divorce is to work with us at Rita Holder Law. We have the experience to properly deal with anything that may be involved in your situation.

Community Property vs. Separate Property

What Is Considered Community Property?

California Family Code § 760 (2025) tells us that “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”

The property’s location doesn’t matter. What does matter is that the couple lived in California when they acquired the property.

Financial property such as retirement plans are included in community property. Furthermore, if during the marriage, interest or income is accumulated in a financial instrument such as a 401(k) an IRA, or a pension, it also is treated as community property.

Ashley Andrews, an attorney practicing in Southern California, explains that California is a 50/50 state: In other words, community property is split equally, 50% to one spouse, and 50% to the other spouse. Items normally included in community property are: the home that you share, your bank accounts, your cars, your investment accounts, etc.

According to the IRS, California is one of nine states in the U.S. that use community property rules to divide assets. The other community property states are: Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In California, if a couple does not have a divorce settlement agreement, then a judge must divide the couple’s community property and debts equally. (See California Family Code § 2550 [2025].)

What Is Considered Separate Property?

Any property not classified as community property is considered to be owned by one of the spouses as “separate property”. Separate property normally stays with the spouse who owns it, and is not divided in a divorce.

California law defines the following items as separate property:

• property that was owned by a spouse before marriage.
• property that one spouse inherited or received as a gift.
• any money made from separate property (such as rents or profits).

Some properties may be in a “grey area’. For example, consider the following case. Before the marriage, one spouse is gifted real estate property with a house on it. Later, the couple lives in the house for 15 years, while they are married. Because one spouse owned the home before marriage, this seems to fit the criteria of separate property. However, because the couple shared the home throughout a long-term marriage, it’s possible that, after taking into consideration all factors in play, a judge may decide that the home is community property.

Legal Factors That Judges Consider

If the couple doesn’t have a written divorce agreement, and a judge is deciding how to distribute the property, it’s his or her responsibility to figure out how to divide the property evenly. The judge has some flexibility in terms of how he or she does this. For instance, to ensure that both sides receive assets of equal value, a judge may give an expensive new car to one spouse, and give the other spouse assets that are valued (in total) the same as the car.

If the marriage is deemed a “long-term marriage” (one lasting ten years or longer), and a judge is making the decisions about property distribution, he or she will take the long-term marriage into consideration, and may assign more items “community property” status than if the marriage was a shorter one.

Protecting Your Rights

When going through a divorce, you want to protect your rights; you want to make sure the property division is fair. A good way to do this is to take advantage of knowledge that’s been accumulated by an experienced family law attorney.

Rita Holder, founder of Rita Holder Law, has that depth of knowledge, and can put it to work for you.

Give us a call today at 925-401-7885, or fill out the quick form on our Contact page.

We’re here to help you navigate through a painful process, and we’ll make it as smooth as possible.