On Nov 5, 9:45 am, "nomail1...@hotmail.com" <nomail1...@hotmail.com> wrote:
> I was curious (just idle curiosity, BTW) about how community
> property is divided in a Calif divorce.
I am not a CA lawyer but I noticed no one else responded to your post yet, so I offer my own idly curious comments in the same vein as your query.
> In particular, I wondered
> if is just a matter of divided assets so that the total net value
> is divided 50-50 (generally), or if each asset must be divided
> 50-50.
I doubt very much that the CA courts require the parties to use a chainsaw to cut their BMW down the middle, as it were. What generally happens everywhere, and probably in CA too, is that the parties come to some agreement as to the value of the various assets (aided, if necessary, by a formal appraisal) and also come to some agreement as to how those assets are to be divided (he gets the Ferrari, she gets the Jaguar, he gets the beach house, she gets the ski chalet, and so on), with cash being used to make up the difference where the tangible assets or realty each party retains after the marriage ends do not come to exactly the same value (as, statistically, they rarely would).
If the parties are unable to agree amicably, then I suppose ultimately the court will have to order that all assets be sold, converted to cash, and then the cash be split 50-50. But that would happen only if the parties cannot otherwise agree on how to divide the tangibles.
> I vaguely recall some "recent" court decisions (where "recent"
> means: in the last 2-3 years) that affected the way assets
> must be divided in a (Calif?) divorce in order to ensure that one
> spouse does not get "stuck" with assets that are more likely
> to depreciate in value. But I'm not sure.
About that, I have no idea. However, if the risk of depreciation is known and is part of what is taken into consideration when the agreed evaluation and division of property is made, ISTM the parties ought to be bound by their agreement after it is approved by the judge. But in CA, stranger things have happened.
> Generally, the web page states that: "[T]he law does not
> require an 'in kind' division of the community property. All
> that the law requires is that the net value of the assets
> received by each spouse must be equal".
>
> That should answer my question dispositively.
Yes, it should. That makes sense and is pretty much what other states say too.
> But it goes on to say: "Thus, it is not uncommon for one
> spouse to be awarded the family residence, with the other
> spouse receiving the family business and investment real
> estate".
>
> That appears to say that the residence can be awarded to
> one spouse only when there are other business interests
> and real estate properties persumably of equal value.
No it doesn't. That is just an example of how different assets can be retained by different parties and do not have to be sold in order to make it "come out even". If there is no family business, but there are, frex, savings or other investments worth as much as the house, one party can get the cash and the other party can get the house. There are myriad ways this can work out, all very fact-specific to the particular couple, their assets, and their desires.
> Is that right?! Or can the (current appraised) value of the
> house be balanced by the net value of other assets, for
> example stocks and bond holdings and other personal
> property of value?
Of course it can. It amazes me that you would take a mere example as expressing a binding limitation on how things can be done.
> Moreover, later it states (emphasis added): "Where minor
> children are involved, it is common for the custodial parent
> to be allowed to live in the residence with the children for a
> specified period of time after the Dissolution of Marriage is
> finalized. [....] The house MUST BE sold when: there are
> no children living at the property, the youngest child attains
> the age of majority, or any date as otherwise agreed by the
> parties or specified by the court".
>
> Is it trying to say that the residence "must be" sold only in
> the case where it was awarded to the custodial parent while
> minor children are still living there, AND such an award
> results in a lopsided net value of community property going
> to one spouse? (OR perhaps also when such an award
> "forces" the custodial spouse to take his/her share of
> community property in real estate against his/her
> preferences?)
First of all, this is going to be very fact-specific, as noted above. Secondly, you elide part of the quote so we have no idea if you have taken out needed context to fully and correctly understand it. Thirdly, putting that aside, I read the quoted example as referring only to cases where the couple has NO substantial assets other than the house, meaning that the community property CANNOT be equitably divided yet without selling the house, so the court delays final resolution of that issue to permit the custodial parent to continue living in the family residence until the minor children are grown, and THEN the house, which is the only major community asset the parties hold, "must" be sold, because that is the only way its value can be divided. In all other cases, if there are sufficient assets to make the division earlier and still allow a custodial parent to keep the family home as part of his or her share, ISTM there is no reason that cannot be done earlier, and this exception would not be called upon to delay final settlement.
> Or is it truly saying that the residence always "must be"
> sold as part of the dissolution; the sale is simply deferred
> until there are no minor children living there?
ISTM it "must be" sold if, and ONLY if, it is the only way an equitable division of property can be made.
That does NOT mean that, in each and every case regardless of the parties' wishes, it "must be" sold to make all divorces fit the same Procrustean bed.
And, in but ONLY in those cases where the house "must be" sold, the court is empowered to defer sale until after the minor children are grown, so that the custodial parent can continue to live in it to raise the children in the home they already know, to minimize the disruption of the children's lives.
I'm ignoring the rest of your post as, in your words, idle speculations that you can probably already answer yourself if you take the above concepts into account. Have fun,
--
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Mike Jacobs
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