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Who gets to keep the gun(s) in a divorce in California?



The recent COVID-19 pandemic has caused firearms sales in California to skyrocket. An often-asked question is “who gets to keep the gun (or guns)” in a divorce, and how does gun ownership affect the court proceeding?


Firearms and ammunition are considered part of marital property in California and are therefore divided based on community property principles. This means that unless there is an agreement otherwise, the divorcing spouses will split the value of the firearms and ammo equally. Gun ownership can also potentially affect child-custody determinations.


What does ‘community property’ mean?


Community property is a legal concept that dictates how assets are divided in California divorce. The basic concept is that a marriage takes two people to function, even if only one of them earns most of the money. For example, if Wife is an E.R. doctor who works 70 hours a week and earns $300,000/year, and Husband stays at home to take care of the kids, they will still share equally in all assets when divorcing. The lower-earning spouse is not punished for being a lower earner. The end result of this idea is that assets earned during divorce are split 50/50, regardless of which spouse “earned” those assets.


Assets in this case include homes, cars, investment accounts, furniture, timeshares, etc., including guns and ammo. If the couple owned one single gun valued at $1,000, then one of two things can happen. Either the couple sells the gun and splits the money $500 each, or, one spouse keeps the gun and ‘pays’ $500 to the other spouse.


What if there are several guns?


This calculation doesn’t change if there are two guns or two thousand guns. Like other assets they will be assessed for value and added into the overall marital property math. There may be a situation where one gun is worth $300, and the other gun is worth $10,000. This still leads to the same conclusion; $10,300 in firearms assets divided by two = $5,150 for each spouse.


There are times when one spouse refuses to sell a gun because it has sentimental value. This is usually fine as long as that spouse can afford to pay to offset the value of their half of the gun.


Obviously, it is important that all assets, including firearms, are included in the property division calculations. At the outset of a divorce proceeding both parties will be required to fill out a form titled “Schedule of Assets and Debts.” This multi-page document contains spaces for each spouse to list all the things that they own, and it will be used by the court and attorneys to work toward a final equitable distribution. Firearms and ammunition will need to be listed on this form. If your spouse fails to list his or her guns on this document, you will want to have your attorney harass them to do so.


How to find out if your spouse has guns you don’t know about


Californian gun enthusiasts are well-aware of the myriad of intricate firearms regulations in the Golden State. Guns can be “illegal” here because they appear on a list of banned weapons, because they include banned features, or because they were purchased at the incorrect time. Additionally, certain felons are excluded from owning different firearms as well. It can be messy.


This messiness occasionally leads to spouses acquiring or modifying firearms in a way that avoids state law scrutiny. In a legal proceeding where specific guns are required to be listed on a court form, it is not unheard of for one spouse to simply lie about what they have. Luckily the California Department of Justice Bureau of Firearms offers a way to get a record of all legally registered guns that a certain person has. By filling out and submitting form BOF 053 with the state government, a printed list will be produced identifying all the guns that someone is supposed to have. A spouse can then compare this list with the actual guns in their spouse’s possession to make sure that nothing is missing.


To be clear, an illegal gun still has value and a divorcing spouse is entitled to half that value.


What if my spouse uses up all the ammunition before the divorce is final?


Ammunition is expensive. Some common ammunition round prices are listed below, and they add up fast. We have all seen TV shows where a divorcing spouse cuts a car in half with a chainsaw so that the other spouse ‘gets half.” This is not allowed and is referred to as a dissipation of assets, which is unlawful.


Cutting a car in half however is quite different than a husband who regularly goes through hundreds of rounds of ammo each week at the range. If that husband now starts shooting 1000 rounds a week in order to “use up” all the ammo, it is not clear if this is unlawful dissipation or not. Each situation is slightly different. Talk to your divorce attorney about this issue right away so that additional steps can be taken in an attempt to prevent dissipation of ammunition.


How to value guns in a divorce?


Nearly all marital assets will be assigned some value during a divorce proceeding in order to make division simpler. Real estate can be valued by a property appraiser. Cars and trucks can be looked up on Kelley Blue Book. High-value possessions like a Persian Rug or Grandfather Clock also can be priced by a professional. Other items however, including most firearms, will receive as-is value, also known as garage sale value. Price comparisons should come from Craigslist, eBay, etc. As guns are not allowed to be sold on either of those platforms, we recommend looking to Armslist.com, which is basically a Craigslist for firearms and associated accessories.


Find a few entries on Armslist.com that are similar to what you have, print them out and bring them to your attorney so that he or she can include them in calculations.


Is child custody affected by gun ownership?


While this question might be laughable in Texas, here in California it is a legitimate inquiry. Child custody proceedings are notoriously hard to predict as the judge has enormous discretion. It is entirely possible that one spouse could make an argument that having a lot of guns around the house is a dangerous condition that should affect child custody. If that spouse can look back and point to times when guns have been left out, un-locked and easy to access by kids, it is entirely possible that a judge might take it very seriously.


If you have guns and children, take extraordinary precautions to keep the children safe and the guns in a safe. If you are divorcing a spouse who is loose with gun safety around the kids, you will want to consider making this argument to the judge when it comes to child custody determinations.

For additional information about how firearm ownership may affect your divorce proceedings contact Christopher Marshall Law today at (858) 964-2324.

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