Property Division 

 
 

What are the Different Types of Property Classification?

All property acquired during marriage by a married person domiciled in California is either community property or separate property.

What is Community Property?

Community property are property acquired during marriage by a married person domiciled in California that is not specified by statue to be Separate Property.

What is Separate Property?

Separate property includes all property owned before marriage and all property acquired during marriage that is acquired by gift or inheritance, produced by separate property or acquired after the date of separation.

What is Quasi-Marital Property?

Real or personal property, wherever situated, acquired by either spouse while domiciled outside of California that would have been community property if acquired while domiciled in California, or property acquired in exchange for such property are called "Quasi-Community Property" (QCP).

What is Quasi-Community Property?

 

Property acquired by parties to an invalid marriage that would have been community or quasi-community property had the marriage been valid, as long as either party qualifies as a "putative spouse" are Quasi-Marital Property. A Putative spouse must have had a good-faith and objectively reasonable belief that the marriage was legally valid.

 
 

The Three Major Components of Any Property Issues

 

In the context of marital actions, there are 3 major components of resolving any property issues. They are characterization, valuation and division.

 

Property Characterization

Property characterization involves the determination of whether a property is community or separate in nature. The 4 factors affecting characterization are Time, Tracing, Title and Transmutation.

 

Time refers to the general rule that property acquired during marriage while domiciled in California are community property. Tracing refers to the accounting of the source of funds used to acquire the property in question. Title refers to the form in which title is taken creates a presumption that title is held as shown in the instrument.

 
 
 
 

What is Transmutation?

Property rights of spouses prescribed by law may be altered by an agreement during marriage. Such agreement is also called a "postnuptial" agreement or a "transmutation" agreement. In some cases, interspousal gifts can be a transmutation and convert separate property or interest in community property into the other spouses' separate property. Under the Family Code, there are strict requirement for a valid transmutation.

Valuation

 

For purpose of property division in marital actions, the value of a marketable asset is the highest price on the date of valuation that would be agreed to by a seller who is willing to sell but under no obligation or urgent necessity to do so and a buyer who is ready, willing and able to buy but under no particular necessity to do so.

 

To assign community assets to a party as part of an overall equal division of community assets and liabilities, the Court must value all such assets, except for those equally divided in kind. Valuation is required when one party will purchase the other party's interest in community property.

 

Additionally, all employee benefit plans such as retirement plans, pension, profit sharing plans, stock options, restricted stock units (RSU), deferred compensation plan, accrued vacation and sick pay, and workers' compensation benefits are a form of compensation. They are characterized when earned, not when received. If the benefit accrued during marriage, the community gets a share even if the benefits are unvested at the date of separation.

 

In general, small business and professional practices created during marriage are community property regardless of who is the primary operator. The spouse who manages the business may ultimately receive the business but the other spouse is entitled to have the business valued and receive the spouse's one half interest in the community business. Business valuation routinely require expert testimony as the market value of a business is determined by valuing several components, including but not limited to, accounts receivable, goodwill, fixed assets and liabilities.

 

Case law also established different ways to apportion business profits to the parties. To accurately value and divide a business, you need an experienced lawyer who understands the complexities of community property division. Third-party experts such as certified public accountants and appraisers are often utilized in the effort to value and divide a business. It is critical for your family law attorney to speak the financial jargon of the financial experts. Caleb K. Wan has a double major in finance and international business. His business and financial background brings a greater depth of knowledge in dealing with business valuation and division. It is imperative that you obtain solid legal counsel to protect your interests. Call (925) 289 7989 today to receive help with your property issue.

 

Debt Confirmation and Assignment

In general, the community is liable for a debt incurred by either spouse before or during marriage. It does not matter whether one or both spouses are parties to the debt. For purpose of property division in marital actions, debts incurred by either spouse before marriage shall be confirmed without offset to spouse who incurred the debt.  All debts incurred by either spouse during marriage and before the date of separation shall be divided equally. However, if the community debts exceed the community assets, the excess of debt shall be assigned as the Court deems just and equitable taking into account factors such as the parties' relative ability to pay. Separate debts incurred by a spouse during marriage and before the date of separation that were "not incurred for the benefit of the community", shall be confirmed without offset to the spouse who incurred the debt. 

How is Student Loan divided in divorce?

 

The legislature has created special rules for Student Loan for purpose of property division in marital actions. Under California Family Code, if the education or training of a party has substantially enhanced the earning capacity of the party, the community shall be reimbursed for community contributions to such education or training. The reimbursement amount shall be with interest at the legal rate. Nonetheless,  if the community contribution to the education or training was made more than 10 years before the commencement of the proceeding, there is a rebuttable presumption that the community has substantially benefited from the education and training of the party and that the reimbursement amount shall be reduced.

 

A loan incurred during marriage for the education or training of a party shall be assigned for payment by the party and shall not be among the liabilities of the community for the purpose of division. Call (925) 289 7989 today if you have any questions about debt confirmation and assignment.