What are the Three Types of Character of Assets in a San Diego Legal Separation or Divorce in 2014?

Community property, and it makes no difference whether a legal separation or divorce in San Diego Superior Court, is property which is acquired from date of marriage to date of separation. While many believe that an inheritance or a gift is separate property, this is not true if the gift or inheritance was obtained during the marriage. It is correct that an inheritance and/or gift may not be divided equally between the parties in a legal separation or divorce but this does not change the character of the property. This is very important since there is a legal presumption that all property acquired from the date of separation back to the date of marriage is community. As such, the burden of proof that the community property should not be divided one half each is placed upon the spouse claiming that the assets should not be divided one half each. To rebut the presumption that the asset is community property, a tracing in accord with Family Law Code Section 2640 needs to be conducted. This may be very easy {such as providing bank statements that show the deposit and the funds held} or very complicated {such as when real property is refinanced once or more times} and may need a forensic CPA when this occurs. To resolve these issues, it also may be necessary for oral testimony at a hearing where a Judge can assess credibility and the state of the evidence.

Separate property, and again makes no difference whether a divorce or legal separation, is property acquired before date of marriage or after date of separation. Under California law, this is not divided equally in the divorce however there are circumstances when the separate property is not segregated from the division. For example, if separate property is commingled, then this can change the character from separate to community. If a pre separation bank account is used to place money into a community bank account and then exhausted, it may not be possible to trace the separate property component. Similarly, transmutation [written agreement to change character] can turn separate property into community property. An example is a separate property residence which is refinanced and the name of the other spouse added to title. While this may not result in the complete equal division of the real property, the community may gain an interest. Again, when this gets complicated, an expert opinion may be needed to resolve.

Quasi community property is property which would be community property but is located outside the state of California. This may be within the United States or outside the United States. While the San Diego Superior Court does not have jurisdiction over the division of a property in a “foreign jurisdiction” [whether another state or another country], the Court does have personal jurisdiction over the parties and can make orders dividing these assets.

The character of the property is crucial in determining what is needed to establish the division. Using presumptions is very powerful for legal arguments and an accurate and correct analysis must be completed.

The Law Firm of Doppelt and Forney, APLC has experience in all three types of assets. By calling their office and setting up your free in-person or virtual consultation up to 30 minutes, an attorney will analyze your assets and the rest of your family law case and give proven and effective strategies to protect your rights and try and obtain your goals. The law office has full time attorneys and legal staff to assist you.