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Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 27010
Experience:  General practice of law with emphasis in family law.
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In California I thought the division of property was from

Customer Question

In California I thought the division of property was from the date of separation? It's been 5 years and the Judge said we needed to find out the value of the property. I had the house appraised in 2011.
I was under the understanding that everything is divided from the date of separation I'm being told in court now that that's not true it's from the time of trial. I have been giving the mortgage payment for over the last five years. How is it fair that my ex is going to get half of what the house is worth now when there's a big difference in the value of today as opposed to 2011..
Submitted: 1 year ago.
Category: Family Law
Expert:  Samuel II replied 1 year ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

771. (a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse.

(b) Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to a contract of a type described in Section 6750 shall remain the sole legal property of the minor child.

SO it seems that once the separation is finalized, that is when the marital acquisition ends. That means you would have to have the court sign off on a separation or if you have a Marital Separation Agreement regarding each other waiving rights to any acquitions of the other since the separation.

However, while CA is a community state, it is possible to argue that the amount you have paid the past five years should not be included in any type of marital property distribution and should be designated as your separate property, if you had a verbal understanding. Of course, you would need to have the other spouse stipulated to that.

Customer: replied 1 year ago.
What about 401k, saving, eat.
Expert:  Samuel II replied 1 year ago.

It's possible to argue it all. Again you will need to show a separation agreement or have your spouse admit there was a verbal agreement in this regard.

Expert:  Samuel II replied 1 year ago.

You can argue there is a presumption acquired while living separate and apart. That is a defense.

Expert:  Samuel II replied 1 year ago.

I suggest you can present the argument under Section 771 that I provided for you. And that there was an understanding you were legally separated and willing to go your separate ways and live your lives separately from that date on.

Expert:  Samuel II replied 1 year ago.

It seems to me that your acted in a way that 771 permits. There is no way any intelligent person would simply make all those payments on their own and that is why there was a mutual understanding between you and the spouse that each would go their separate ways and earnings would be separate, etc. And your separate earnings, based on your understanding of 771, would not be marital and therefore the money used for the property in the past 5 years is separate and community property needs to be pro rated in that manner.

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