A lot of people want to know whether they’re able to agree to something that is different from a 50/50 split, meaning half to one spouse and half to the other. It really falls upon the declaration of disclosure requirements in California, and what that means is that at the beginning of a case, the petitioner and the respondent fill out a declaration of disclosure.
They do it at the beginning of the case, and that’s called the preliminary declaration of disclosure. What happens is, you follow the instructions on the form – it’s very, very simple instructions – and your document can be as detailed as your life is detailed.
The declaration of disclosure requirement is something that can’t be waived, and it has to be filled out by a petitioner and respondent to disclose your allegations regarding separate or community debt or property. Once those have been disclosed, you can agree to an unequal division of community property.
If you go to court, meaning you can’t reach an agreement and the judge needs to decide the division of community property and debts, then the judge is bound to divide everything equally and generally in kind – meaning that the credit card debt will be divided, the equity in the home will be divided equally, all of it is equally divided if you go to court.
You can divide things unequally if you decide to go by way of settlement, so long as assets and debts have been properly disclosed and the person who is taking less of a community property split is making a knowing and intelligent waiver of that property. But if you go to court, meaning you can’t reach a settlement, the judge is bound to divide everything 50/50.
Ann A. Thomson is a family lawyer practicing in Seal Beach, California. She serves clients throughout the Orange County and southern California area. To learn more about Ann and her firm, visit www.annthomsonlaw.com.