There are a number of reasons for couples to call it quits in their relationship. Whether it’s because one of them committed adultery or the physical abuse of the other, there are a number of different aspects to a divorce case. Yet, what never changes in a divorce case is the fact that the financial future of both of the spouses is often uncertain. This is because, come divorce time, there is a need for all kinds of assets in a divorce case to be divided between the spouses.
This may seem simple. What is uncertain in division of a property? First up, who gets what will depend on the opinion of the judge and second, uncertainty in this regard is with respect to what assets are on the table to be divided and which ones are off the table.
Knowing exactly what the marital estate comprises off and what is not included can help decrease the uncertainty surrounding the asset division part of a divorce.
There are different kinds of assets that are kept away from the divorce case. Some of these types are highlighted below.
Inheritance and Gifts
In family law, it is understood that the property which has been gifted to a person by another or the property that has come down through inheritance is often kept separate from the property to be divided in a divorce case. However, if the other spouse contends that the property should be divided, the onus is on the owner of the property to prove that it was either from inheritance or from a gift given to them by someone.
Properties Kept Out by Way of an Agreement
There are instances when a couple may decide to come to terms on an agreement as to the division of some of the property during the marriage, in the event of a divorce. If that is the case and the agreement exists and is accepted by both the parties, then the assets mentioned in the agreement will be kept away from the divorce process and once the rest of the assets have been divided, the judge may incorporate the agreement in their decision.
The concept of asset division is based on the fact that whatever was accumulated during the time of marriage was a result of the relationship of marriage between the two spouses and hence, both equally contributed to it. Based on that logic, any asset brought in before the marriage will remain strictly off limits. Even assets that are bought using money that was stored in a separate bank account pre marriage will stay off limits. Yet, care must be taken not to use community funds for any separate property’s maintenance, etc.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.