What Factors Might Affect How Property/Assets Are Divided In A Divorce In CA; Such As Fault, Length Of Marriage, Etc.?

Fault 

Many years ago, a party had to prove that the other party was “at fault” in order to get a divorce (a common example of fault is adultery). Today, CA is a no-fault divorce state. This means there is no requirement to show either party committed any kind of fault before obtaining a divorce. Even though “fault” is no longer a required showing, sometimes bad behavior can affect the outcome of a divorce (see below).

How Property Is Divided

In general, community property is divided 50-50 (or close to it). Separate property is generally assigned to the party who owns that separate property. Usually if a spouse takes an asset which has debt with it, the spouse takes the debt along with the asset. For example, if one spouse is assigned the house which has a mortgage, the spouse getting the house in the divorce is likely also going to be responsible for the mortgage payments. It should be noted that even when the spouses divide up responsibility for debt between themselves, that does not necessarily affect a creditor’s rights in the event of default. For example, if one spouse is assigned a credit card debt, the creditor that issued the credit card may still have recourse against the other spouse if the debt is not paid on time and the other spouse was also liable to the creditor before the divorce.

Sometimes parties choose to divide up their community property differently (ex: 65%-35%). The law gives spouses a lot of flexibility when it comes to dividing up their property. In situations in which spouses are less cooperative, then a court needs to decide how to divide the property. When a court is asked to make orders affecting property division, typically the community assets are split 50%-50%. When a court is involved, the fight is not usually a question of what percentage of the community assets each spouse will get. Rather, the fights usually focus on disagreements over the value that each spouse thinks a community asset is worth, or the extent to which an asset has both a separate property interest (belonging to one spouse) as well as a community property interest (belonging to both spouses). Sometimes a court will assign more than 50% of the community property to one spouse as a penalty to the other for bad behavior. For example, in the past the court has found that intentionally failing to disclose the existence of assets justifies assigning 100% of a community asset to one spouse. But in general, the court is going to split community property 50%-50%.

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