San Diego Property Division Lawyer

La Jolla and San Diego – Division of Marital Property Lawyers – Distribution of Marital Property – Valuation of Assets and Debts

Based in central Mission Valley, the property division lawyers at Wilkinson & Finkbeiner, LLP, provide personal service, attention, and professional representation to men and women throughout southern California, including San Diego and Orange Counties concerning the confirmation, division and distribution of marital and separate assets.

We also assist clients with post-divorce (post-judgment) issues regarding the discovery and division of undisclosed (omitted) assets pursuant to California Family Code 2556, such as hidden bank or retirement accounts, undisclosed real property, and collectibles or other personal property (motor vehicles, RVs, boats, antiques, fine artwork, etc.).

Skilled Carmel Valley Property Division Experts

California is a “community property” jurisdiction, which means that assets and debts acquired by one or both spouses during marriage are generally the joint property of both spouses equally, with some exceptions such as property acquired by gift or inheritance.  These types of property are not community property unless transmuted into community property.  Property acquired prior to the date of marriage and after the date of separation is presumptively the separate property of the acquiring spouse, unless the property is acquired using community funds.     

Preliminary Declarations of Disclosure (Family Code 2120-2129).

A divorce lawyer’s first step in analyzing a case is to review and organize the Income & Expense Declaration and Schedule of Assets and Debts forms, which must include accompanying statements and is filled out by both parties during the “disclosure” process.  Our family law specialists provide this form to all new clients immediately so they can begin to formulate the list of assets and debts to complete the form in a timely fashion.  This speeds up the likelihood of prompt resolution to the case so that parties can reach an expeditious settlement, or the case moves forward through various hearings more quickly.  Parties are required to update and augment the form during the course of the divorce.  The Schedule of Assets and Debts form contains a complete list of all assets and debts owned by the parties, including both community and separate property.  Since the disclosures are signed under penalty of perjury, it is important that the form be completed honestly and completely.   

Is it Property?

Our San Diego property division lawyers and specialists will assist you with every issue surrounding valuation (including procuring the advice of valuation experts including realtors, personal property appraisers and appraisers) and distribution of marital assets, including dividing marital or quasi-community property such as the following:

-Family residence

-Other real estate holdings including investment properties and rental units

-Business ventures, including closely-held businesses and S-Corporations

-Stock options and deferred compensation such as pensions

-Retirement plans (401(k), IRA, pensions, military, PERS, etc.)

-Collectible items, including antiques, coin collections

-Insurance policies and insurance proceeds

-Inheritances, gifts, devises (although these might likely be separate in nature)

-Personal property, including furniture and electronics

Some intangible things people believe are property are not, including goodwill, creditworthiness, and unvested pension benefits.   

Assessing which assets are community properties and which assets are separate property can often be a difficult undertaking. We have the experience and understanding to assist you with characterizing such assets and determining the best course of action to divide properties in a divorce case.  Many times we use the services of a financial planner or tax professional, including CPAs, to assist in securing the best strategy for the ultimate division of assets and debts.  The California Family Code has very detailed provisions relating to characterization and division of property resulting from a marital relationship.  Some properties may be of a mixed character, both community and separate.  There are also increasingly technical and relevant appellate cases that interpret these Family Code sections.  Hiring an experienced San Diego County divorce lawyer at Wilkinson & Finkbeiner, LLP will help you strategy for your case.  We service all geographical areas of San Diego County, California, and litigate in the family law courts located in downtown San Diego, Chula Vista, El Cajon, and Vista.

Characterizing Property and Preliminary Issues

Your lawyer’s analysis of your case involves determining the character of property and discussing whether any outside influences may apply to such characterization.  The following are questions you should consider answering and immediately informing your attorney if any of these apply or may apply to your case:

-Whether the parties entered into a premarital agreement

-Whether the parties entered into post-nuptial or community property transmutation agreement after the date of marriage

-How title is held

-Whether either party has a right to reimbursement of separate property

-Whether either party deeded property to the other during marriage

-Whether a breach of fiduciary duty claim exists resulting from transactions between the parties during marriage.

-Whether community property was contributed to acquire separate property or pay down separate mortgages

Determining the character of property can be a highly technical and time-consuming endeavor.  Property can be community, quasi-community, separate, or combination (mixed) character.  Quasi-community property means property acquired outside the State of California that would be community if it had been acquired within the State.  Our attorneys are experienced in analyzing property and determining the nature of property according to the law.  Time of acquisition of an asset or debt is an important initial question.  Assets and debts acquired during marriage are presumptively community in nature.  Assets acquired before marriage and by gift, bequest, devise or inheritance are separate in nature, and generally include the increase in value, or appreciation, of those properties.  Of course, there are exceptions to these general rules, such as where assets are commingled or transmuted.  While these concepts may seem quite straightforward, in most cases the characterization of assets is very complicated. 

Date of Separation

The date of separation is a legal term with significant importance.  The date of separation occurs when spouses physically separate from each other and one spouse subjectively intends to end the marital relationship and does an act to objectively manifest his or her intent.  The date of separation is important in all marital dissolution and divorce cases because the acquisition of assets or debts after the date of separation by either spouse will be considered their separate property.  For example, contributions to pension plans, earnings, purchases of vehicles and other assets acquired post-separation are separate property.  Importantly, post-separation acquisition of debt is an important issue in many divorce matters.  For example, credit card charges by one party after the date of separation are assigned to the acquiring spouse, even if the debt was incurred on a credit card in joint names. 

Valuing Assets and Property

During most divorce proceedings it is necessary to value items of community, separate or mixed property.  This may be done by testimony in court.  Either party may testify based on his or her personal knowledge of the item, through a party’s research using tools such as Kelly Blue Book, or through expert testimony or reports.

Either party may offer expert testimony regarding the value of an asset or obligation.  Alternatively, courts may appoint an expert pursuant to Evidence Code 730 to provide the court with a written valuation of an item of personal or intellectual property, or business interests.  Such an appointed expert’s report is submitted to the court upon agreement between the parties, or upon the motion of either party, and is subject to cross-examination by either party. 

Typically, in proceedings involving the division of large community estates, valuation experts can be extremely helpful.  For example, experts may be appointed to value items of personal property including jewelry, artwork, or antiques.  Real estate salespersons and appraisers can provide valuable information regarding the value of real property. 

Depending on the circumstances involved in your matter, consultation with an expert attorney in the early stages can be invaluable tool in the preparation of the overall litigation strategy. 

Business Interests and Valuation

Divorce cases involving the valuation and division of business interests can be extremely complicated not only because businesses may be inherently complicated to value, but because self-employed spouses may cause litigation to be more confusing or protracted due to child support or spousal support issues.

There is no solid valuation rule for the courts to apply to valuing business interests.  Of course, the financial records of businesses including tax returns, profit and loss statements, balance sheets, customer invoices, financial investments, and so forth are important pieces of information.  Of significant concern is the type of business, number of employees, and market share of the business.

Generally, courts apply either the marketable (fair market value) rule or investment value rule to arrive at a valuation figure.  Other standards of value are not prohibited.

Deferred Compensation

Deferred compensation assets in marital dissolution proceedings can be divided by the court if they are community or partly community in character.  Deferred compensation includes pension plans, government including military pensions, and stock options for example.  Experts are often needed to assist in valuing these assets.

Often it is prudent practice to file a joinder motion to ensure that the plan administrator is cordoned into the family litigation when a deferred compensation package exists and is under the family court’s jurisdiction.

Finally, many deferred compensation assets are divided in divorce proceedings using the Time Rule, and a specific order is created to effectuate the division of such assets.  The specific document utilized by parties is referred to as a Qualified Domestic Relations Order, or QDRO.        

Contact a San Diego County Property Division Lawyer

For further information or to discuss the valuation and division of your marital assets, or to determine if an asset is considered marital property, we invite you to schedule a free confidential consultation with an experienced San Diego property division lawyer by calling us at (619) 284-4113. The parking and confidential consultation are free.