Property Settlements & Division
Property Settlements can be among the most difficult in any case. Often expert witnesses are needed for appraisals, valuations and other opinions. Choosing the correct San Diego marital property attorney can make all the difference in a complex property case since experienced attorneys have expert witnesses who they can recommend who have qualified in court and have experience. In California, there are three types of property: community property; quasi community property and separate property. Characterization of each property [real, persona or intangible such as retirements or other accounts] will determine the division. It is essential to hire an attorney who can explain to you the difference between these three types of property and can insure a division which is in accordance with the law. In our firm, we offer this in the complimentary consultation.
Most property settlements are contained in a document called a Marriage Settlement Agreement or a Legal Separation Agreement. Both of these contain, among other provisions, the division of the assets and debts. These include real property, personal property and intangible property. Each property must be individually listed and valued. Failure to fully disclose can lead to an omitted asset which can later be divided by the Court and there are punitive sanctions for a willful failure to disclose an asset which can mean an unequal division of the property in question. In a recent case in California, a wife won a lottery settlement. The wife did not inform the husband of this and filed and obtained a divorce. After the divorce was final, the husband found out about the lottery settlement and went to Court and asked for his community property interest which would have been fifty (50) percent (%) if this asset had been divided in the divorce. Since the wife did not disclose and hid this asset, the Judge awarded the husband the entire proceeds of the lottery settlement. Do not let this happen to you and make sure to fully disclose all of your assets and debts.
Property Settlements also have debts. In each case, there may be issues of a tax amount owed by the community, student loans, credit cards, mortgage and home equity lines of credit, and other debts. The normal rule is that all debts acquired from the date of marriage to the date of separation will be community debts. The same is correct for property as it is presumed community if acquired from the date of marriage to the date of separation. There are some notable exceptions, however, and these normally include payment of debts for support from another relationship as well as student loans or other types of loans. Similarly, for property, assets which are acquired through gift or inheritance, even while married, are considered separate property. There may then become issues of transmutation and commingling which can change the character from separate to community. Often, in complex cases, an expert witness such as a forensic accountant or certified public accountant is utilized. This is especially true for long term marriages of over ten years however can also be applicable to short term marriages as well.
Once a Property Settlement has become a Judgment, it is very difficult to go back and change. This is why it is essential to have any Property Settlement reviewed by an experienced attorney so that your rights can be protected. While it is possible to set aside judgments under the Code of Civil Procedure Section 473 or the Family Law Code Section 2122, these are difficult motions and often very expensive. It is less expensive to make sure that your Property Settlement is in accordance with the law before signing and not after.
Contact Us Online or call us at 858-312-8500 in Southern California. Our marital property attorneys will be pleased to offer you a complimentary and confidential consultation up to a length of 30 minutes to discuss strategies and techniques to assist in protecting your rights and trying to obtain your legal goals.