Legally, the answer is a resounding “NO!” Although divorce laws vary from state to state, there is not one state in the Union that permits one of the spouses to walk away with absolutely everything leaving the other spouse with absolutely nothing. If you feel that you or someone you know is being financially mistreated in a divorce proceeding, please secure the counsel of an experienced divorce attorney as soon as possible.  Indeed, the concept of ‘fault’ has been removed from the process and a spouse who is threatening to leave you with nothing is attempting to commit emotional abuse, probably as a continuing part of a long pattern of abusive conduct that you have been enduring.  The divorce process is the time when you will have a team of professionals helping you end the cycle of abuse and start a fresh life on your own.  You will not be starting with nothing.  


How are assets divided in a divorce?

Most states follow the concept of “equitable distribution,” which means that the presiding judge has some latitude in awarding marital property unequally if they think the circumstances warrant it. For instance, the spouse who will be the primary caregiver of minor children will likely get a larger share than the other spouse. But even in equitable distribution states, the result must be fair to both parties.


The State of California is one of a handful of states that follow the concept of “Community Property,” which means that any financial asset that is acquired during the marriage, with very few exceptions, is considered to be jointly owned, 50-50. When those assets are then divided in the divorce, by law, the judge must ensure that each spouse receives 50% of the total value of the marital estate. At their discretion, they may approve a distribution plan written and approved by the couple, provided that it is just and fair, even if it results in an unequal split.


What about our house?

For most couples, their family home is their largest asset (and, likely, their most significant liability). If possible, the simplest thing to do is to sell the house and divide the proceeds equally. However, this does not work in every situation. For instance, if minor children are involved, the spouse with primary custodial care may want to retain the house to provide a measure of stability and security amid their emotional trauma. Under those circumstances, and if the judge determines the caregiver is able to sustain the house (pay the mortgage and maintenance expenses, etc.), they may order that the house be awarded to that spouse. However, if that happens, the other spouse must receive a share of equal value from the remaining estate.


How do I protect my share of assets in our divorce?

The first thing to remember is that the only assets divided in a divorce are those identified as “Community Property.” “Separate Property,” things that belong to just one of the spouses, are not divided, determining which is which, though, can be tricky. This is especially true if you have been married for a long time. In this case, there has likely been a significant commingling of assets, which in most cases means that what you or your spouse thought was separate property is actually community property, and thus must be divided.  


In California, as a part of the divorce process, you and your spouse have a duty to disclose all your assets (e.g., real estate, bank accounts, investments, retirement plans, business partnerships, collectibles, etc.) and liabilities (e.g., mortgages, credit card debts, liens or other automatic deductions from income, etc.) on Form FL-142, Schedule of Assets and Debts (SAD). You both must also submit a Form FL-150, Income and Expense Declaration (I&E). These forms play an important role in determining the value of the marital estate, and guide the courts in how to divide the property in the finalization of the divorce.


Building Your Team

At Silva & Associates, we believe that competent legal counsel is crucial in this process. We can help you collect all the data you need to ensure you do not leave anything undisclosed. We can help you negotiate a fair and amicable settlement with your spouse without resorting to a court hearing or trial. On the other hand, if your spouse is not cooperative, or especially if you believe they may be hiding assets from you, we have the tools and expertise necessary to ensure that you are protected and that your divorce does not lead to your financial ruin. We encourage you to reach out to us today and let us walk with you through this process.