t is probably of no surprise to you that California regards all property acquired during marriage as community property and as such the property is generally divided equally between husband and wife.  In general, the only exceptions to this policy are property received as gifts or from inheritance. Property acquired before or after the marriage is separate property and ordinarily belongs to the parties acquiring it, provided it has not been comingled with community property such that it cannot be traced. This sounds simple, but consider the examples of a home purchased before the marriage. Some of the payments on the mortgage are made before the marriage and some during the marriage. Therefore, the home is “acquired” both before and during the marriage, resulting in an apportionment being required to determine the relative community and separate interests. Or consider a pension plan where one of the spouses contributes to the plan partly during the marriage and partly before or after. Again, an apportionment of the plan is generally required.

This principle also applies to debts. On the whole, debts incurred during the marriage are community in nature and must be divided between the parties. Again this sounds simpler than it is.  Where the debts of a marriage exceed the assets there may be different treatment by the law. There is also the issue of whether or not a party paid some of the community debts with separate property assets. This is the case when, after the parties separate, one party continues to make payments on a credit card debt incurred during the marriage. The balance due at the date of separation is community property because the debt was incurred during marriage, but the payments made after the date of separation are being made with post-separation earnings and are separate property.

Sometimes the major issue in a case is evaluation, ie., establishing the value of an asset, be it real estate, a business, or a pension plan. Often the court relies on standard indicators, like the Kelly Blue Book values for automobiles. But in some cases appraisals by experts are a necessity.

During your divorce, you will have to complete and serve on your spouse, a Declaration of Disclosure. This document which includes a schedule of assets and debts, requires a full listing of all your property and debts, including supporting records such as statements, ownership documents, etc. There are actually two Declarations of Disclosure required: A Preliminary and Final. The Final Declaration of Disclosure can be waived if both parties agree. Since it can be an onerous task, I suggest that if you know you are going to divorce, you start gathering this information early. The earlier you provide your attorney with complete information, the sooner your case can be completed. If one of the parties is asking for spousal support or you have minor children, an Income and Expense Declaration will also have to be served with the Declaration of Disclosure. These documents are not filed with the court. However, a form declaring that the documents were served on the other party is filed in Court.

Whether you intend to resolve your marital issues by agreement or not, a careful assessment of your rights and liabilities with regard to property and debts of the marriage is critical and is best performed by an experienced divorce attorney.