Asset & Debt Division
In terms of divorce and assets, how does a court divide property?
Most divorce cases settle and parties can reach any division of property they want to by agreement for their judgment. However, if the parties cannot settle and the matter goes to trial, the court is required to divide all community property equally between the parties and confirm separate property to the person it belongs to.
How is community property defined?
Community property is all property received during the marriage, except by gift or inheritance by one of the parties.
Can you help me understand “characterization, valuation, and division of assets” and how it relates to my divorce process?
Assets and debts are characterized as community property, separate property, or a mixture of the two, then given fair market valuations that exist at the "date of distribution" (the date of settlement or trial, or the date one party takes control of an account such as a checking account). Assets and debts are then awarded or confirmed to the appropriate party per the parties' agreement or court order.
Can it hurt my case if I leave our marital home before we are officially divorced?
This depends on several factors, including whether or not you have children and have already reached custody agreements, or whether you hope to eventually retain the home in your judgment. Your consultation is a good time to discuss your goals and concerns about this issue with one of our attorneys.
How will a premarital agreement (also known as a prenuptial agreement) affect property division in my case?
If you have a valid premarital agreement that affects how property will be characterized and divided in a dissolution proceeding, make sure you raise this issue with your attorney and provide a copy of the agreement to your consulting attorney before your consultation. The agreement likely contains important terms, which may or may not be enforceable, regarding property division in the event of a divorce. The laws surrounding the enforceability of premarital agreements are constantly evolving in California and it's important to have a knowledgeable attorney review your particular agreement and give you feedback on its enforceability and effect.
Are there any tax considerations/complications that should be addressed during a divorce?
Transfers of property that occur incident to a divorce are not taxable events. Special care needs to be taken when dividing retirement accounts to ensure that the division will not be taxable. There is no stepped-up tax basis as a result of a judgment or order awarding property to one party or the other.
Can you tell me more about YOUR FIRM’S expertise when it comes to dealing with clients who are going through complex property issues?
When you have a matter involving complex property issues (such as employment options/RSUs/stock for example), it's important to work with a family law specialist who is aware of the intricate mechanisms to equitably characterize, value, and divide these assets. We consult with top experts when appropriate to make sure all complex property is divided and assigned correctly.