San Diego Property Division Attorney

Dividing Assets and Property by Court Order

If the parties cannot reach an agreement regarding the division of assets and property and/or if one or more of the parties is not being cooperative in the negotiation and division process (i.e. one party is not providing full information about his or her property), the judge will have to divide the property between the parties. This process can involve complicated evidentiary showings and hearings.

The general approach that the judge will employ in dividing property is to allow each party to keep their own separate property, which is the property that each party came into the marriage with separately, or which was given as a gift to one party in particular (i.e. a wife receives an inheritance from an aunt that was intended only for her). The judge will, however, divide up what is referred to as “community property,” which is the property that the parties to the marriage acquired over the course of the marriage. The rules of community property can be extremely complicated, and are the subject of a separate page here, but generally any income generated by either party during the marriage or any property acquired during the marriage by either property with community funds will be considered community property. For example, if one spouse worked a job over 10 years of the marriage, and accumulated $1,000,000 in savings over that time, all of that money will be considered community property. The court will generally divide the community property in half between the two parties to the marriage. The distinction between what is community property and separate property can become quite intricate, such as in determining how much of a business or an ongoing pension plan is community property, and both parties are advised to consult counsel to make sure their rights in the property is protected.