Working with an Attorney-Mediator when dividing community property, gives the parties more power and control over the division of their property.
California Family Code Section 2550 states that in a proceeding for dissolution of marriage or legal separation, the court shall divide the community estate of the parties equally.
However, there is an exception to this rule if the parties have otherwise made an agreement. The agreement between parties may be either:
- a written agreement among the parties or
- a stipulation of the parties in court.
If one of these two agreements are Not made between the parties, then the decision is left for the judge to make. When left open to a judge, the community estate will be separated equally, with no guarantee to either party what they will receive. Whereas, in a divorce done through mediation, the two parties hold control throughout the entire process of how their property is divided.
During divorce mediation, a Marital Settlement Agreement (MSA) is created, which will clearly state to the court and any party involved, who is receiving each piece of property. In addition, under an MSA the property does not have to be divided equally if the two parties would prefer a division of property that is not based off of the properties market share value. The MSA must be made with full disclosure, knowledge and understanding of the agreement. The agreement must also be made voluntarily and without duress.
It is important the MSA created sufficiently meets the requirements of the Family Code. While you may consider separating property among yourselves without hiring an attorney, this can lead to problems in the future. Utilizing an experienced Attorney Mediator will allow parties freedom to reach an agreement and the support needed to meet the statutory required Disclosures and confidence the MSA will be accepted by the court.