How to best (and legally) protect your assets in a divorce

Let’s say you want to divorce your spouse. However, you’re not sure how to divide who gets to keep what.

Don’t worry, You’re not alone.

Dividing assets from a marriage is one of the most difficult – and stickiest parts – of a divorce. And California law doesn’t make it any simpler.

So, there’s community property and then there’s separate property. California is a community property state, which means there is a presumption of community property. Community property is property that is divided between husband and wife. It’s shared marital assets.

Community property can be any type of asset: paintings, jewelry, designer clothes or accessories, vehicles and even retirement plans, such as a 401k. It can also be checking or savings accounts, stocks and bonds, life insurance policies, basically anything of value and any type of asset.

And separate property? Separate property is property that is owned by only one party. So, if you get a divorce that one person takes it and it is theirs. Usually, it is something that was acquired before the date of marriage or acquired with separate assets after the date of separation.

But she stressed it’s not always that simple or cut and dry. Take, for instance, owning a piece of property. Who owns the property and how much the other spouse is entitled to because of that property depends on a plethora of factors.

And it depends on when the property was acquired. Let’s say one of the marital parties purchases a house before marriage and uses their separate property as down payment. But let’s say during the marriage half of the mortgage is paid off using both of their funds. The part that was paid down during the marriage is community property.”

The key to dividing all assets is something as simple as recognizing when was the date of separation. But even that one simple fact can get very contentious as it can cost one person more or less in assets depending on the determination of that date.

The date of separation is this magical date that divorcing couples will actually spend a lot of time and money litigating. The date of separation is not always the date the divorce is final. Sometimes couples will stop living together for a long time or say they haven’t loved each other in a long time, but they never got around to filing the paperwork.

And in some cases years have gone by. So, they just argue about the date of separation. But that date determines everything.

And the problem here is there is really no legal definition of the date of separation, complicating the process further. It’s very factually based. There could be like a three-day trial just on the date of separation. People bring in to court their friends and family to testify against the other spouse.

That magical date could possibly earn one member of the marriage more in assets while costing the other more.

That’s because community property ends on the date of separation. Let’s say you were no longer living with your spouse for several years, didn’t file any paperwork, but in that time you made a lot of money. You’re going to want an earlier date of separation so as not to pay that spouse. And if you’re the other spouse, you’re going to want a later date. It’s all how you look at it.

The same is true is debt is involved.

If one person under that scenario run up a huge bill in that time, then, of course, they’re going to want a different date of separation than their spouse. It’s all based on perspective.