California is one of nine community property states in America. The items you bought and the loans you took out during your marriage are owned jointly by your community of two. During a California divorce, you must split them equally between you both.
Most people want to keep all the items and forget all the debt. That’s human nature. But the California court must approve your plans, and judges rarely accept proposals that saddle one party with too many responsibilities. Working toward fairness can help your divorce moves swiftly through the court system.
Debt and property in California
Debts and assets acquired during the marriage are community property, and they must be split equally during divorce. The concept is simple, but the details can be delicate.
Your community begins on the day of your marriage. In California, it ends on the day of separation, defined as one of the following:
- The day you told your spouse you wanted to end the marriage
- The day you did something (like moving out) that indicated you wanted to end your marriage
After that day, your actions were consistent with someone who wanted a divorce. For example, you didn't move back in or introduce the person at parties as your spouse.
Any debts you acquired between your wedding day and your day of separation are shared, including the following:
- Mortgages
- Car loans
- Credit card charges
- Home equity loans
Student loans come with slightly different rules. Money you borrow for your education typically remains with you, even if you took out the loan while married. Your spouse might ask for reimbursement if you repaid some of that loan with money you both earned during the marriage.
How to divide your debt in divorce
You understand when your marriage started and stopped. How much did you borrow during that time? Gather all of your statements, bills, and receipts. The information you collect can help you negotiate a fair settlement with your spouse.
Your options to split community debt include the following:
- Allocating: If your debts are easily divided, one party could take half. For example, you could accept the credit card debt while your partner pays off the car loan.
- Selling: Cars, boats, and other transferable items could be meaningful fundraisers to help you end your marriage without debt. If you unload these items or give them to your spouse, it could make the financial situation easier to resolve.
- Borrowing: You could take out new loans in your name only to cover your shared debts. This is typically a smart option for divorcing couples, as banks and other lending institutions rarely honor divorce agreements. If your spouse skips a payment, you're on the hook, even if you tried to discharge that debt in your divorce settlement.
- Accepting: You could agree to pay back a large portion or all of your debt in return for something equally valuable (such as the entirety of your retirement account).
No option is right for all couples. Instead, you're encouraged to have a frank and honest discussion with your partner about what you have, want, and need. Together, you can collaborate on a solution that works for you both. And since California requires a six-month waiting period for divorce, you have plenty of time to connect and work out the details.
To make decisions during your divorce, you can do one of the following:
- Collaborate independently. Create an accurate list of all of your debts and assets. Propose a split that seems reasonable to you, and ask your partner to review your plan and offer feedback. Trade documents back and forth until you find a plan you can both accept.
Online divorce services can assist in this process, helping you make sure you check all the boxes as you complete the process. - Work with a mediator. Accepting debt isn't easy, and some people struggle to create plans everyone can agree to. A mediator is a trained professional who can help you hold constructive talks with your partner.
You can use a mediation session to work through one or two difficult problems, or you can ask this person to assist with your disagreements. They can help you find resolutions that seemed impossible initially. - Opt for a default divorce. You can get divorced even if your partner doesn't want to and won't collaborate on the process. In a default divorce, you submit paperwork to the court outlining your plans for community property and debt. If the proposal seems fair, a judge will rule on the divorce without consulting your spouse.
Splitting your debts can seem difficult or overwhelming. But with time and patience, you'll create the right plans for you, your spouse, and your future.
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References
What Is Community Property? American College of Trust and Estate Counsel.Property and Debts in a Divorce. Judicial Branch of California.
Common Challenges When Splitting Debt. Judicial Branch of California.
Make Decisions. Judicial Branch of California.
