In a divorce case, the court will divide community property in accordance with the agreement of the parties, or if there is no agreement, in a manner the court deems fair and equitable. The court will not divide separate property. All property acquired during the marriage is presumed to be community property unless it is proven to be separate property. Examples of separate property include anything that was acquired prior to the marriage or property acquired during the marriage by gift or inheritance. Sometimes if separate property has changed character or been comingled with community property it may be necessary to trace the separate property interest. In addition, if community property has been used to improve separate property or to retire separate property debt there may be reimbursement claims.
Generally, employment benefits such as a pension plan, 401(k) plan or other retirement plans are considered community property to the extent they were earned during marriage. It is important to have an experienced attorney effectively present to the court how an asset should be characterized as either separate or community property and to assist in determining the value of community property. It is also important to have committed legal representation to help prevent community assets from being hidden or wasted by one’s spouse. Here at Lundberg Law we are conversant in the issues that arise when dividing community property and can help devise the best possible strategy for dividing and protecting your assets.