• What You Are Entitled To In California Divorce

What You Are Entitled To In California Divorce

Are you wondering what you are entitled to in California divorce? If so, you are not alone. Many individuals going through the divorce process often think about what property or other rights they may be entitled to under California divorce law. Under California law, each spouse is entitled to one-half equal share of the community estate. This includes assets such as the family residence, vacation home, and bank accounts. If you are asking yourself, “What am I entitled to in California divorce,” this article will help. There are, however, downsides of “focusing” on what you are entitled to in California divorce. Read on to learn more about California’s community property laws and how some couples are choosing a different perspective to get through the divorce process.

What Each Spouse is Entitled to in California Divorce

Separate Property

When you file for divorce in California, any property you acquired prior to marriage, during your marriage by gift, devise, or bequest, or after the date of legal separation will be deemed separate property. You are entitled to keep all of your separate property upon the dissolution of your marriage.

Community Property Assets & Debts

Any acquired asset or debt or income earned by a married person while living with a spouse is community property. California law requires the community estate to be divided equally between divorcing spouses unless agreed otherwise by each spouse. Community property includes, but is not limited to the following:

  • House
  • Car
  • Furniture
  • Clothing
  • Bank accounts and cash
  • Pension plans and retirement accounts
  • Business
  • Patent

When dividing community property and debt, the net value of community property assets each spouse receives must be equal, unless the parties agree otherwise. For example, one spouse may be awarded a vacation property and the other spouse be awarded the family residence that is of equal value. If minor children are involved, the primary custodial parent may be awarded the residence and be allowed to reside there with the children for a specified period of time. The spouse residing in the family residence will usually be required to pay the mortgage, property tax, and upkeep expenses unless agreed otherwise between the parties. In addition, debts will also be distributed equally between spouses.

Spousal Support

You may be entitled to spousal support (alimony) upon divorce in California. A spousal support order requires one spouse or domestic partner to pay the other spouse a specified amount each month. The judge will consider several factors in determining whether to award spousal support:

  • Length of the marriage
  • Domestic violence
  • Age of both parties
  • Supporting spouse’s ability to pay
  • Age and health of parties
  • Tax consequences
  • Goal of self-support

Contact A People’s Choice for more information about spousal support.

Professional Degrees & Licenses

If a spouse obtained a professional degree or license during the marriage, the community may be entitled to a reimbursement for the costs of acquiring the degree/license. Such costs include tuition, fees, and books.

Retirement/Pension Division

In California, retirement and pension benefits obtained/funded during marriage will usually be divided equally among spouses at the time of divorce. Pension plans are divided as a “reservation of jurisdiction” or as a “cash-out.” Dividing retirement plans in divorce requires the preparation of a Qualified Domestic Relations Order.

Under the reservation of jurisdiction, the court may order that upon the retirement of the employed spouse, the other spouse receive a percentage of each pension check. This percentage is typically calculated by dividing the years the spouses lived together as husband and wife by the total amount of years the employed spouse participated in the plan.

Under the cash-out method, also referred to as actuarial evaluation, a determination is made regarding the “present value” of the community share of the pension plan. Upon the “cash-out,” the employed spouse may receive the pension plan in its entirety, and the other spouse will receive other community property assets of an equivalent value.

Downsides of Focusing on What You Are Entitled To In California Divorce

Although this may surprise you, focusing on what you may be entitled to in California divorce may not be in the best interest of the parties.

Focusing on what you are entitled to in California divorce will set you and your spouse up for a big fight.

Rather on focusing on what you are entitled to in a California divorce, I believe the parties are better served with focusing on what they can agree to. Experience has shown that when a couple is more concerned about what they are entitled to in a California divorce rather than what they are willing to agree and compromise on, settlement becomes much more difficult. It could also affect the family dynamics if there are children involved. For example, if one party is entitled to spousal and child support in an exorbitant amount that puts unreasonable financial pressures on the other party, these pressures may have a detrimental affect on the split family dynamics.

Each party is “entitled to” what both parties are willing to “agree to.”

Although this may not be the advice an attorney would give you, experience has shown that couples who focus more on compromise and agreement than “entitlement” are often happier with their final settlement. These couples find themselves completing the divorce process with fewer negative repercussions often associated with divorce. This, in turn, results in a more positive outcome for all parties involved.

At A People’s Choice, we can help you file for divorce and avoid expensive attorney fees. Although we are not attorneys and cannot provide legal advice, we can offer a different perspective to our clients to better help them get through the divorce process.  If you focus on what you are entitled to in California divorce, you may find yourself making matters worse and not getting much more.  Contact us for more information about how we can help you.

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By |2018-01-18T15:47:00+00:00March 22nd, 2016|Family Law|10 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

10 Comments

  1. Mildred Edgar June 29, 2018 at 10:11 pm - Reply

    My friend was divorced from his wife .They were married for ten years.Seperated after 8 years but divorce did not finalized till ten years anniversary.His wife remarried after 5 years of divorced.My friend retired 5 years ago.Is the ex wife entitled to received part of his pension under California law ?I appreciate your responds.Thank you.

    • Sandy McCarthy July 1, 2018 at 6:21 pm - Reply

      All retirement issues and any division of retirement should’ve been addressed in the final judgment of divorce.

  2. Brenda Kovach July 9, 2018 at 7:15 pm - Reply

    Hi. Well! I’m just not in love or want to be around this man I married 33 years ago. His addictions are wearing me down. I’m exhausted and just want out. I’m not asking for the world. I just need to be able to leave and be able to get going on my own. I’m 60 years old and in good shape. But I’ve allowed him to take care of the finances. I just need to know my first step.

    • Sandy McCarthy July 9, 2018 at 7:40 pm - Reply

      If you want to file for divorce, we can help you with the paperwork. Just give us a call at 800-747-2780.

  3. Nancy Bynes July 24, 2018 at 4:16 pm - Reply

    My husband And I have been married for almost 30 years.There has been significant spousal abuse but only documented in the last 2 years. No longer in love with each other, it’s time to move on. Kids are grown & gone. We jointly own our mortgaged house. We’re both self-employed, both businesses are home-based. He’s on permanent disability but does some work on the side anyway. I suffer from significant neurological issues making full time work very difficult. I’m 59 & he’s 62. How difficult will it be for me to get alimony. I need to keep the house.

    • Sandy McCarthy July 24, 2018 at 9:20 pm - Reply

      I cannot comment on what a judge would order for alimony. We can only help you present the facts of your case in the best light possible. Let us know if we can help.

  4. Tyronne Rouege September 6, 2018 at 12:58 am - Reply

    Hello. My wife and I have been married for 30 years but separated for 17 years. We have decided to get a divorce. We have no minor children together, and no home, or material property to divide. The only community property we jointly share is our individual retirement funds. My question is, do we need to hire attorneys to settle the division of our pension plans?

    • Sandy McCarthy September 6, 2018 at 8:24 pm - Reply

      Hey Tyronne – we can help you with the divorce and the retirement division QDRO. If you and your wife agree there should be no need to hire an attorney. Give us a call at 800-747-2780.

  5. Nelly September 17, 2018 at 5:58 pm - Reply

    Hello my name is Nelly,

    I am married to my husband for 22 years. As is. Is he is receiving pension from the military and the VA disability. He will be retiring from the feeeral next year and he will be receiving another pension after retirement. He also have IRA. Our property is both in our names. What am I entitled too?

    • Sandy McCarthy September 18, 2018 at 12:36 pm - Reply

      As a non-attorney, our role is strictly limited to legal document preparation. We cannot legally give you advice out what you are entitled to. I would speak to an attorney and then if you want to save money regarding the document preparation you can contact us to prepare the paperwork.

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