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Property and Debts

 

In order to help you better understand the divorce process, some basic information is provided below. However, this is not intended as legal advice and should not be treated as such. Every divorce case is different and unique. There is no set formula used in every divorce case. Your case can be evaluated only after Divorce Attorney Francisco Zavala personally discusses the specifics of your case with you.

 

COMMUNITY PROPERTY

 

When it comes to marriage and divorce, you may have heard of the phrase "Community Property". Community property is anything earned or acquired by either spouse during the marriage, including debts. Another word for community property is marital estate. Think of your marital estate as a big box filled with everything you ever acquired during marriage, both valuable (Car) and not valuable (Credit Card Debt). 

 

In every divorce, you have to divide up your marital estate. This includes property as well as debt acquired during your marriage.

 

What is considered property?

 

The most obvious is your home, vehicles, land, valuable items such as jewelry and money in bank accounts. However, property also includes retirement accounts, accumulated vacation pay, pension funds, employee stock options, tax refunds and equity in insurance policies. Divorce Attorney Francisco Zavala will make sure that all community property is accurately accounted for and fairly distributed among both parties. In a divorce, each spouse is entitled to an equal share of both assets and debts.

 

In a pending divorce, both parties are responsible after separation for accounts that are in both of your names. It is very important to close all credit card accounts that were in use during your marriage. While the divorce is pending, you are liable for any credit card use by your spouse. It may be a good idea to open new accounts and get new credit cards in your separate names. To avoid animosity, and if reasonable, inform your spouse of your intent to do this.

 

Before a divorce petition is filed, one spouse acting alone can take all the money out of a joint bank account. This means that any property in jointly owned accounts is at risk until a Petition for Divorce is filed with its automatic restraining orders. Divorce Attorney Francisco Zavala will immediately file a Petition for Divorce with a restraining order to protect money in joint bank accounts. To further understand restraining orders please review our separate section in our website under "Restraining Orders."

 

SEPARATE PROPERTY

 

Separate property belongs to one spouse and is not part of the marital estate. Generally, a divorce will not affect separate property. Separate property is defined as property and debt that was acquired before the marriage. Property and Debts from before the marriage are the separate property of that spouse. For example, loans for the education and training of a spouse are treated as the separate debt of that spouse.

 

Finally, it should be noted that any property or debt acquired by either spouse after the date of separation is considered that spouse's separate property or debt. The date of separation is whenever one spouse intended to make a complete, final break (not just a temporary separation), with simultaneous conduct furthering that intent. Usually, this means one spouse moves out and is living separately and makes it clear through words and actions that they have permanently terminated the relationship.

 

In general, neither spouse nor the marital estate is liable for the other spouse's debts incurred after separation. For example, if after separation but before filing a divorce petition, your spouse purchases an expensive vehicle, that car loan is his liability and neither you nor the community estate is liable if he defaults on the car loan.

 

THE FAMILY HOME

 

If you and your spouse own a home purchased during the marriage, then the community has an interest in it. The best way to determine the current market value of your property is to consult a professional real estate appraiser. Divorce Lawyer Francisco Zavala will utilize his resources to retain a real estate appraiser for that purpose. Once the current market value is determined, the balance of your mortgage is subtracted from that amount to determine the value (equity) of your property. The amount of equity belongs to the marital estate, and both spouses have an equal interest in this equity.

 

In deciding who, if anyone, will keep the family home, you will consider the children (if any), your emotional ties to the home and neighborhood. But, you must also consider whether it makes economic sense to keep the home. Can you afford to make the mortgage payments, taxes, and insurance? Several options are available when deciding what to do with the family home, such as 1) Selling it and equally dividing what is left after paying off the mortgage loan; 2) Transferring the house entirely to one spouse in exchange for something worth half the equity of the property; 3) Change title of the property to tenants-in-common (separate ownership), with each spouse holding an equal interest, with an agreement that the custodial parent and kids may live in the home until the age of 18; or 4) One spouse keeps the property and buys out the other spouse's half share in the equity by refinancing. 

 

DUTY SPOUSES OWE EACH OTHER

 

During a pending divorce, spouses have equal rights to manage and control their community property. Each party owes the highest duty of good faith and fair dealing to the other. Either spouse can sell community property (other than furnishings and clothing) without having the written consent of the other spouse. However, the sale must be for a a fair and reasonable value and the sale proceeds are part of the community estate and belong equally to both spouses. However, neither spouse may borrow or mortgage against community property without written consent of the other spouse.


Divorce Attorney Zavala will take charge of your case and handle all the details regarding the proper allocation and division of your marital estate. Family Law Attorney Zavala will fully investigate your case to make sure that all property is accounted for and that nothing is hidden by your spouse. Divorce Attorney Francisco Zavala will use the court process to obtain an truthful asset and debt statement from your spouse including all relevant records.


Divorce Attorney Zavala will make sure the court enforces the standard of care that your spouse owes you, including:

 

To provide you with full access to records on transactions involving community property.

To account for any benefit or profit derived from investment or use of community property.

To obtain full and true disclosure of all information regarding the existence and value of all assets and debts that are community property.

 

Contact Property Division and Mediation Attorney, Francisco M. Zavala, Esq. (661) 753-3534

 

 

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