San Diego Divorce 2011: Identification of Property and Characterization of Property

Divorce and legal separation in San Diego involve both characterization of property and identification of property. Legal separation and divorce both involve the division of assets and debts. In San Diego, in the five family law court houses in San Diego County, the Court will divide community property assets {property} which can consist of identifying real property, partnerships, business interests, accounts receivable, unsecured notes, deferred compensation, IRA, annuities, 401K, 403B, profit sharing, pension, retirement, mutual funds, stocks, bonds, secured notes, life insurance with a loan value or cash surrender value, tax refund, cash, credit union deposits, checking accounts, savings accounts, boats, airplanes, trailers, vehicles, coin collections, collections of value, art, jewelry and household furniture and furnishings and appliances. Characterization of this property can be confusing.

In San Diego, property under California Family Law Codes are divided into three categories: community property; separate property and quasi community property. Quasi community property is that which would be community property but located outside of California itself. Community property is property which is acquired from the date of marriage to date of separation. Separate property is property which is acquired before the date of marriage or after the date of separation. In addition, a careful analysis must be done. For example, a gift or inheritance may be community property since before date of separation and after date of marriage but may not be divided equally in the San Diego Court’s. In addition, there are limited circumstances when community property is not divided equally such as omitted assets. One such California case was a spouse who won the lottery while married and did not tell the other spouse and divorced without disclosing the lottery win as an asset. Of course, the other spouse found out and the Judge awarded 100% of the lottery winnings to the non winning spouse and this was as punishment for not disclosing. Separate property can also change character from separate property to community property] by written transmutation or commingling. In addition, it is possible under California law to ask for a reimbursement when separate property is used for a community purpose under some circumstances.

Identifying property in a divorce or legal separation should be easy. It is mandatory under California law to serve a schedule of assets and debts with the accompanying documentation to the other spouse with a proof of service of the preliminary declaration of disclosure. In some cases, however, a spouse is not disclosing. In these cases, advanced strategies to identify property may be needed. These strategies include, but are not limited to, asset search by investigator, subpoenas, depositions, demand for production of documents, request for admissions and written interrogatories. In addition, a notice of intent of oral testimony for court may be filed and served so testimony is taken under oath in a court of law. Identification of property is crucial in any analysis when considering settling a legal separation or divorce case.

If you have questions on property issues such as identification or characterization in a San Diego divorce or legal separation case {or any other family law issues}, please feel free to contact us for a complimentary virtual consultation.