Community Property, Joint Tenancy and Partition

At the Law Office of David P Schwarz we are very experienced and knowledgeable Community Property lawyers who can assist Divorce clients going through a difficult dissolution. If the characterization of property is slowing you down from getting a divorce Call or contact the Law office of David P Schwarz at 949-735-9266. Often the characterization of whether real property is Community, held in joint tenancy or as tenants in common is difficult to ascertain.

A spouse can assert during the divorce that a property should be characterized other than community property. Parties find themselves often involved in Joint Tenancy agreements. The parties share title property as Joint Tenants. This form of ownership is quite common in Orange County California. Often parties enter into title this way prior to marriage thus making it difficult to distinguish if the property is community property or Joint tenancy. Characterization of the real property assets is vital for courts to determine the presumption of ownership of the property. As in California there is a rebuttable presumption that all property acquired during marriage, when not acquired as the separate property of either is community property per Civil Code, § 687.

If a couple purchased a property prior to marriage and purchased it as a true joint tenancy then a Court cannot divide the property as Community Property and lacks jurisdiction to do so. To divide the property in Joint Tenancy if Community property laws do not apply the Court will look to Civil Court Remedy of Partition under a Civil action.

In the partition action the court may order an equitable relief such as compensating the injured spouse an allotment to balance the financial interests of each spouse. If the appropriate Partition action is brought in civil court it can be consolidated with the dissolution action in family law court.

Reservation of Jurisdiction

When real property is to be divided equally among the parties and does not occur during the divorce the Courts can do something called reservation of jurisdiction. An Orange County community property lawyer often does this to preserve an asset of the divorce. This means that at a later time in the divorce proceeding or months or years later the Court can order the division of the real property. If the property is held as joint tenancy the Court must divide the property as tenants in Common. The reason is that tenants in common can be divided in equal shares unlike joint tenancy. Often it is in the best interest of the parties to forgo immediate conversion of the real property to tenants in common. The reservation of jurisdiction over the real property occurs often if the value of the home is too low to sell it on the open market. Or if there are children involved the deferred sale of the family residence is often done to wait until the children have graduated high school.

Consult an Experienced Community Property Lawyer in Orange County

The Law Office of David P Schwarz has many years of experience dealing with characterization of community property assets and debts. Our firm has dealt with many highly complex issues related to the characterization of community property and separate property issues. When you find yourself in need of a divorce attorney please call 949-735-9266 for a consultation. Or contact the law office of David P Schwarz via email at dpslaw66@gmail.com or on the web.

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