How To Divide Property During A Divorce

According to John Monkman, a real estate attorney in Palm Springs and the owner of Monkman Law, the first step in dividing physical property during a divorce is determining what separate property each spouse owns. Monkmans job is to analyze this, and to determine with certainty which party should be allowed to keep which properties in a divorce.

Individuals going through divorce are typically not in the friendliest of moods, which is why its so important to have a levelheaded attorney who can take over the negotiations concerning real estate properties.

Community Property
Any property that a person owns separatelysuch as property that was owned prior to entering into a marriage or property that one spouse inherited or received as a giftis not considered community property, and therefore does not have to be split between the two parties during a divorce. While the laws regarding community property vary from state to state, as a real estate attorney in Palm Springs, I am required to abide by the California regulations regarding what is and is not considered community property. Community property in California is supposedly split right down the middle in a divorce.

There are cases where one spouse may have entered the marriage with separately, solely owned property. However, if the other spouse helped to pay a mortgage on that property during the marriage, then that property may have become community property that now needs to be split evenly between the two parties.

Attorneys Job
It is the lawyers job to speak to both parties in the case and see if there is one person who would prefer let the other keep the property for himself or herself. Depending on the property, the upkeep and property taxes on some residences can be quite high. Thats why in many cases, there may only be one spouse who says that he or she is willing to stay in the property and continue paying for its upkeep each month. Sometimes the woman wants to keep the house, sometimes its the man. In some of those cases, the spouse who is keeping the property will agree to pay half of the price of the residence to the other spouse, who will, in return, sign over his legal rights to the home.

As a real estate attorney in Palm Springs, I am contacted for my advice in many high-profile cases, and its unfortunate that many couples are so uncooperative and unwilling to negotiate reasonably with each other during a divorce.

Two Examples
I am currently working on a case where a husband going through a divorce wants to keep his home during the split. This guy has a 14-year-old daughter, and he is the president of the softball league. So this man wants to stay in the house, and he is probably not going to move out unless someone forces him. Unfortunately, the mans spouse wants to stay in the home as well. Cases like this are significantly trickier to navigate, since community properties are technically owned by both parties. Nonetheless, I am trying to help my client by seeking a kick-out order to force his ex-wife to vacate the property.

Similarly, I have another case I am working on where the wife in the split is accusing the husband of unfaithfulness during their marriage. I am representing the husband and the man wants to stay in the house so that he can continue living with his daughter. He takes very good care of her, and he doesnt want to have to move out. As a way of getting back at her ex-husband, the wife in this case has moved a handful of her relatives into the home that she and her ex-husband share. So its kind of a mess over there, and Im in the process of creating the kick-out order for that case right now. Luckily, its not like I have to do my legal work on-site.

Basically, the key to dividing property in a fair and amicable way during a divorce is to try to negotiate a deal that leaves both parties happy and satisfied. When spouses are willing to work together, they are much more likely to reach a settlement agreement that they both think is fair. So I try to encourage them to get together, and I also try to use persuasion to make negotiations happen. But it doesnt work all the time, and sometimes you just have to go into court and battle it out.

This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.

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