When Would Assets and/or Debts be Divided Unequally in a San Diego Divorce or Legal Separation Case in 2014?

Whether your case is a divorce or legal separation, you are bound by the family law in San Diego as governed by the California Code. California is a no fault state and San Diego Judges must follow this law. No fault means that the division of debts and/or assets will not be affected by fault. In the past, California was a fault state and San Diego Judges followed the law and made orders which did unequally divide assets and debts in a legal separation or divorce under certain circumstances. Adultery was considered, traditionally, grounds for divorce and the spouse who committed adultery could be awarded less assets. While not a division of asset or debt, it would have been also possible that adultery would have an impact on spousal support as well. In addition, criminal offenses by a spouse against a spouse could be considered included attempted homicide. Abandonment of the marriage and/or children could also be considered along with other factors and, of course, the discretion of the Judge. In 2014, as almost all know, San Diego does not consider adultery the basis for an unequal division of the assets and debts.

This is a ground for unequal division. This is exemplified by a California Appeals Court Case in which a wife won the California Lottery while married and then filed for divorce without disclosing this to her husband. After the divorce was final, the husband [or course] found out about the lottery win which was community property as acquired between the date of marriage and the date of separation. The husband went to Court and asked that the Judge adjudicate the asset which was not disclosed. The Judge did so and awarded 100% of the lottery winnings to the husband as a punishment to the wife and for public policy so that this does not happen again. Having 50% of an asset is better than having 0% of an asset and this discourages non disclosure however had not eliminated it. Even in these omitted asset cases, the Judge shall divide equally unless “good cause [is] shown that the interests of justice require an unequal division of the asset or liability”. As such, it is crucial to show that the non disclosure was deliberate and not accidental which can also happen.

When persons are married, they have a fiduciary duty to each other. This means that they are supposed to place the interests of their spouse ahead of their own and cannot take advantage of their spouse due to this special relationship. In a marriage, due to this fiduciary relationship, a spouse which breaches [does not meet the standard] of fiduciary duty can have the effect of an unequal division. Often, this is seen in investments and financial decisions which are kept secret intentionally from their spouse to their detriment. This is a very complicated and complex area of the law and a professional opinion is often necessary for the burden of proof in these cases. Many times, a forensic CPA is required to present this factual and legal position.

In San Diego, and all over California, many have a community estate which is “bankrupt”: debts/liabilities are more than the assets. When this occurs, the San Diego Superior Court Judge has the discretion to unequally divide the assets and debts however, when this occurs, 100% of the assets and 100% of the debts are normally awarded to the higher earning spouse. This also requires a financial analysis and a professional may be needed as with the breach of fiduciary duty.

If your goal is to divide the assets and debts unequally in your family law case, you need a legal analysis since this is rare and not in accord with the no fault provisions of California law which divides all assets and debts 50% each unless there is an agreement to the contrary. The law office of Doppelt and Forney, APLC offers a complimentary and confidential consultation regarding your family law case in San Diego. Please feel free to call and set your appointment.