If you and your spouse enter into a written property division the courts will almost always approve the agreement. The settlement agreement must include all assets (house, cars, stocks, bonds, retirement, etc.), and liabilities (mortgages, loans, credit cards, taxes, etc.). If the parties cannot agree on a division of property, then the court will divide the parties' community property "in a manner the court deems just and right, having due regard for the rights of each party and any children of the marriage." Please note that contrary to popular impression, the Court is not required to divide community property 50%/50%. Some of the factors the Court may consider in dividing community property are disparity of income, education and training, health, age, fault in breakup of marriage, nature of property, custody of children, and the parties' capabilities. There is no way to tell how the court will divide the community property --- it is a gamble.

A spouse's separate property consists of (1) the property owned or claimed by the spouse before marriage; (2) the property acquired by gift, devise, or descent (inheritance); and (3) the recovery for personal injuries sustained by the spouse during marriage (except for any recovery for loss of earning capacity during marriage). The court cannot award your separate property to your spouse or your spouse's separate property to you. Separate property must be included in the settlement agreement. If your case will not settle and it is necessary to try the case, the burden is upon the spouse claiming separate property to prove that it is separate by clear and convincing evidence.

Community property consists of property acquired by either spouse during marriage, other than separate property. All community property must be included in the settlement agreement. Also in some cases a client may be entitled to reimbursement claims based on economic contribution.

I frequently hear clients say that they want their attorney to make their spouse settle --- it does not work that way. A settlement agreement is something that both parties voluntarily enter into --- if one spouse does not want to settle, the only alternative is to try the case and let the court decide the matter. If your spouse will not settle on your terms or you will not settle on your spouse's terms, accept the fact and resign yourself to letting the court decide the matter.