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How will community property play into my divorce mediation?

One of the fist questions people having during a divorce is, "Will I lose everything?" Despite how movies and TV shows might depict asset division, divorce mediation will not lead to one spouse receiving the vast majority of marital property. Divorcing couples in San Francisco can expect to receive a roughly equal portion of their marital assets.

California is a community property state, which can simplify division in the sense that both people know what they will receive -- approximately half of their community property and retain the separate property. Some assets such as retirement accounts earned before and duriing marriage can be mixed community and separate property. However, getting to that point, is not always so easy. Before asset division can even begin, all marital property must be identified and valued. This is customarily done by exchanging court required Preliminary Disclosure Documents stating each party's disclosure of both separate and community assets and debts and current income and expenses.  Failure to disclose is serious, and undisclosed assets and debts will not be distributed or divided.  The party failing to disclose may be subject to sanctions for non disclosure. 

For this reason, careful consultation with counsel during the disclosure process is usually recommended before or during mediation, especially when there is a possible mixed asset or debt.

Although there are some exceptions, property accumulated during marriage is almost always considered community property. This can include wages, real estate, vehicles and investments. Couples must also divide debt, regardless of who took it on in the first place.

In some instances, property obtained during a marriage is considered personal. Gifts explicitly given to one person will generally remain with that person, as will inheritances and anything earned or gained after the couple separated but prior to divorce. The key to ensuring personal property remains that way is to keep it separate.

Understanding that an individual in San Francisco is entitled to half of his or her marital assets during a divorce will not necessarily make the process any easier. Emotions tend to run high during divorce mediation, and it is not uncommon to face disputes over the value of certain assets. Seeking out careful guidance from an experienced professional can usually help ease these tensions and lead to the most agreeable divorce settlement possible.

Source: FindLaw, "Community Property Overview," accessed on Jan. 21, 2018

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