The divorce process is designed to separate one life into two, which at best, is complicated and at worse, messy and emotional. This is the heart of the property division process, which is the divorce process where the property is divided between the soon-to-be ex-spouses.
Where one gets their divorce can have a huge affect on the property division process. This is because, some states divide property based on the community property legal theory, while other states use equitable distribution rules.
California is one of a few states that still use the community property legal theory. Other states include Wisconsin, Washington, Texas, New Mexico, Nevada, Louisiana, Idaho, Arizona and Alaska. Under this methodology, marital property is collected, added together and then, split 50-50 between the two spouses.
The remaining states use the equitable distribution model, which also known as fair distribution. In these states, divorce judges get a full accounting of the marital property. However, instead of dividing it 50-50, the judge decides on what is fair for each spouse, which could be 50-50, but not necessarily.
What counts as marital property?
A key to both types of property division rules is what is included in the marital estate because not all property is considered marital property. In general, marital property includes everything that was accumulated during the marriage, including property (cars, homes, etc.) and wages. This is regardless of who earned the income or bought the property, and it is regardless of whether only one spouse financially contributed.
That property that is not subject to the property division process is considered non-marital property. It includes everything that was brought into the marriage, in addition to gifts and inheritances that were given to one of the spouses, individually. Though, this line is very thin, and non-marital property can quickly become marital property, depending on how it is used. This is where Oakland, California, divorces can get complicated.