In divorce, how assets and debts are divided is subject to a number of laws. Assets being what you own and debts are what you owe. Since laws are the same for assets and debts, I’ll refer to both collectively as property.
How property is divided depends on its character. There are two types of character, separate property, and community property. Separate property belongs to one spouse, and community property belongs to both. Whether the property is separate or community mostly depends on when you got it. If you received property before you got married or after your date of separation, it is your separate property. This includes the money you earn after you separated, although you may be required to pay support based on your earnings after you separate. Gifts or inheritance is separate property even if received while married. And any increases to the value of a separate property during the marriage, including any appreciation, profits, or rental income, is considered separate property, even though the increased value occurred during the marriage.
All other property received during the marriage is community property and divided equally between the spouses. This includes the salary you earned while you were married because California views marriage as a partnership. If you saved your salary or used it to make a purchase, your savings and what you purchased with your salary are community property too.
In the rare situation that you have less than $5,000 in community property and you cannot locate your spouse, the court has the power to award all of the community property to you.
Otherwise, unless you have another agreement with your spouse, like a prenup, these property laws apply to you. You can agree not to follow them, but if doing so favors one of you more than the other, the spouse getting a bad deal will have an incentive to go to court or not sign the divorce agreement. It’s better to negotiate with an understanding of the property laws, so you can use your knowledge to offer a proposal that is more likely to end in agreement.
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