Collaborative Family Law And Mediation Services

Can collaborative divorce help with a fair property split?

On Behalf of | Jun 24, 2022 | Collaborative Divorce |

Among the myriad issues that arise in a California divorce, property division is among the most complicated. While it might not have the emotional impact of child custody, parenting time and child support, it can have an extensive impact on the future for both sides. This is especially relevant for people who are in the 40s and beyond. Their children may be grown and they place a greater focus on finances than a younger couple would.

Reading and watching reports about how people engage in lengthy divorce disputes over seemingly every single issue could give people pause when they are unhappy in a marriage but do not want to go through the emotional and financial ringer that comes with an acrimonious divorce. When property division comes to the forefront, people must be aware of the law, how they might fare if the case is handled through mediation or goes to court, and decide that they will try to forge an agreement to avoid an extended dispute. This can be achieved through the collaborative process.

Basics about property division in a California divorce

Before even engaging in a negotiation as part of a divorce, it is imperative to understand the basics of property division in California. While some states are equitable distribution states in which the court will try to achieve a “fair” settlement that is not necessarily equal, California is a community property state. If, for example, a person owned an automobile before the marriage, that will remain separate property. If the automobile was purchased after the wedding, then it is community property and will subject to division.

Community property is classified as anything that was acquired after the marriage. It includes debt. However, if a person inherited property from a loved one as part of a will, that belongs to them and is not considered community property even if it was accrued after they were married. Separate property is like the previous example of an automobile, a business that was owned before the marriage, money that was saved and any property acquired.

There are times when the property is a combination of community and separate. In these cases, it is commingled property. If, for example, one person owned a business before the marriage but the other party contributed to its growth in some way, its value increase could result in it being commingled. The non-owning spouse might have worked there, invested in it or taken part in its improvement in other ways. Retirement plan contributions are also categorized in this way. If people are nearing retirement age when they plan to end the marriage, this can be a source of discord that must be addressed.

When trying to reach a property settlement, collaboration could help

There may be a preconceived belief that divorce needs to be adversarial. However, not every case is like that. People might be on relatively good terms despite deciding to move on from the marriage. Those who are just trying to get their fair share and split property is a reasonable manner can benefit from an evenhanded discussion.

Still, that does not solve all lingering disagreements and property division can be a problem as the sides are trying to craft an agreement. Using a collaborative approach differs from mediation in that the collaborative divorce attorney will represent a person’s interests and the mediator is objective and does not take sides. A collaborative divorce can assess the case, try to negotiate a reasonable agreement that protects the client but is fair to the other party so they can move on without lingering ill will.