A divorce is more than just a romantic and relationship break up. It's also a financial break up, and laws and legal guidelines used to determine how communal property is divided in the aftermath of a divorce proceeding are very complex in California.
How property is divided and which property is divided varies from one type of property to the next. And "complex" property and monies like business assets, stocks, and pension funds often cause great disagreements as to how to divide them.
At San Diego Divorce Attorney, we understand the legal minutia and the local San Diego and Southern California courtroom processes involved in post-divorce property division. We can help you ensure that all property, including "complex" property, is divided fairly in the final settlement or court order.
To learn more or for a free legal consultation, contact us today by calling 858-529-5150.
Property Division in California Divorce Proceedings
In California, marital (called "community") property is to be divided 50-50, or as close as possible to 50-50, in a divorce. Anything set aside as "separate property" of either spouse, especially in a pre- or post- nuptial agreement, is excluded from such division.
Property acquired by a spouse before a marriage, or as a wedding present, is separate property. All money, assets, and things of value acquired during the marriage, however, are community property unless otherwise stipulated by a pre/post nuptial agreement.
That means that real estate, stocks, bonds, and even pension funds are included in community property and must be divided. In fact, 50% of the full market value of the entire estate goes to each spouse.
But also realize that all debts and financial obligations of the marriage are also split 50-50. And under, California Family Code Sections 760 & 771, the court may take into account other factors like the length of the marriage, the income of each spouse, and more in determining whether to adjust away from a strict 50-50 division of the marital property.
Plus, alimony can sometimes be paid by giving the supported spouse extra value in the property division rather than monthly alimony payments for years to come. And even child support issues can impinge upon how property is ultimately divided.
At San Diego Divorce Attorney, we know how all of these factors potentially affect property division decisions, and we can ensure a fair, reasonable settlement is obtained.
Property Settlement Agreements
If there are no children from the marriage, that is, no child support issues, then a simple property settlement can resolve property division issues related to your divorce.
You and your spouse can work out an agreement on your own, and the court prefers you do this - but if you fail to, the court will intervene and the judge will order the property to be divided in a way that may not suit either spouse.
It's critical to get expert legal advice and assistance in formulating your property settlement agreement. All relevant property needs to be included and properly valuated. We have access to property valuation experts for each type of property involved, and we have deep-seated experience in how the law views the division of each type of property as well.
Better to ensure a legally sound settlement agreement from the get-go than to struggle to get the judge's approval because the plan is deemed "inequitable" or "incomplete" OR to have later disputes over allegations someone hid community property or misrepresented it as separate property.
Note that your property settlement can address a wide variety of divorce-related issues, ranging from 401Ks to pensions to real estate to child support to alimony. It's a very complex process that requires deep legal expertise.
Division of "Complex Property"
In some divorces, there isn't much community property to divide or it's all of simple nature (like cash in a bank account and a few other high-priced items.) OR, it might be that pre/post nuptials already clarify how everything is supposed to be divided.
BUT, in many high-asset, high profile divorces, the property to be divided is of a complex nature. This could mean business property, real estate with a lot of equity in it or that is owned outright, retirement accounts, and investment accounts are involved, for example.
However, gifts and inheritances are excluded from this kind of division. And there are also tax issues that will come into play, depending on how the complex property is divided. So it's not a simple matter, and a good family law lawyer will be needed to ensure you don't run into any legal snags down the road.
Realize that it's not uncommon for the other spouse to dispute issues relating to high-value, complex property during a divorce proceeding. It might be a dispute over whether something should count as community property, over certain property having been omitted from the financial disclosure issued by your spouse, or of what is the true value of specific property.
We at San Diego Divorce Attorney have well seasoned negotiation skills and we know what is and is not a "fair deal." We can help you secure a truly fair and equitable property division settlement in your divorce, that will help prevent you from undergoing unnecessary financial loss/hardship in the years ahead.
Qualified Domestic Relations Orders
One area of property division that is very involved and that many tend to overlook at first, is the division of pension payments. A QDRO (qualified domestic relations order) is often included in property division settlements and designates what portion of one spouse's pension will go to the other spouse and for how long.
Since during the marriage, one spouse may have contributed to helping the other get a college degree, professional license, work training, or just time to make the money, while he/she watched the children or attended to other necessary duties; that other spouse is, under California law, often entitled to a share of the pension money. He/she is, in effect, a co-beneficiary on the pension plan.
But the spouse receiving a share of the other spouse's pension may also has to report that income and pay taxes on it. There is also an option to have pension monies received put into an IRA or other retirement account and to thus delay paying any taxes on it. This kind of a procedure allows management of the funds by the receiving party in his/her own account.
And note that unless you get a court-approved Qualified Domestic Relations Order included in your settlement, you could still have your pension money go to your ex, but you could end up paying the taxes on it nonetheless. Thus, a QDRO is very important to the spouse who owns the pension fund as well as to the other spouse.
On the other hand, if you are the spouse who will receive money from the other spouse's pension, and if you don't want to but it into an IRA, you can arrange to have the money transferred directly to your bank account - but this will be taxable on the next tax return you file. And if you take the money from an IRA early before retirement age, a 10% early withdrawal penalty applies (but not for most non-IRA retirement plans.)
Thus, you need the expertise of both an experienced divorce law lawyer and a tax expert when dealing with division of pension funds during a divorce proceeding.
How Pre and Post Nuptial Agreements Can Help
Many times, when a person comes into a marriage with high assets and high earning potential, he/she will get a prenuptial agreement to designated what is separate property and what is community property.
While no one enters a marriage hoping for a divorce, these kinds of agreements greatly simplify the process of dividing property during a divorce, should one occur. And couples can also add a postnuptial agreement after marriage that will function the same way as a prenuptial.
And it's not just a matter or protecting personal assets, but pre- and post- nuptial agreements may also be made to protect your business assets or to ensure children from an earlier marriage are not cheated out of the inheritance that you want to leave to them.
Legal Requirements for Valid Prenuptials
We've seen that a pre- or post- nuptial agreement can help simplify property division during a divorce. But two other points need to be made as well: a good family law lawyer can help you with equitable property division even without a pre/post nuptial, and even with one, it is possible that elements of the agreement could be challenged on legal grounds (which is why you want legal help in writing such agreements to begin with.)
One party might challenge the validity of a prenuptial on a number of grounds. In general, it has to be "substantially fair" and it has to enforced in a "fair manner."
You can include special clauses in a pre/post nuptial, such as specific assets being forfeit should a divorce occur on the grounds of adultery. And you can make the agreement apply both to divorce and to the death of one, the other, or both spouses.
But aside from all the leeway to craft your own pre/post nuptial agreement in a a way that seems good to both spouses at the time, here are some specific requirements that can be the grounds of a legal challenge (during a divorce) if they are violated by the agreement:
- The agreement must be voluntary on the part of both spouses.
- It must be in writing (not merely a verbal agreement) and be signed by both parties.
- Nothing in the agreement can be illegal or against state "public policy."
- All assets and debts of both spouses must have been fully disclosed before the agreement was signed.
- The signatures must be notarized.
- The agreement cannot be overly one-sided, where one spouse basically gets little to nothing no matter what. A spouse surrendering all right to spousal support (alimony) might fall under this category, for example.
- The pre/post nuptial cannot adversely affect a child. It cannot have one party agree to give up child support rights or eliminate the court's right to determine child custody and visitation matters.
In sum, all elements of a prenuptial or postnuptial agreement must conform to California's Uniform Premarital Agreement Act to be valid and "enforceable."
Thus, a pre/post nuptial is advantageous to simplify divorce property division issues, but if it's not fully in line with the law itself, it can be challenged and overturned, at points if not in full.
Why Choose San Diego Divorce Attorney?
At San Diego Divorce Attorney, we realize you have a lot of options when it comes to choosing a divorce/family law attorney to handle your case.
We never take you for granted but instead we offer you a level of expertise, experience, and "grit and determination" that is lacking in much of our competition.
We are skilled at handling every aspect of property division, including complex property like real estate, stocks/bonds, pensions, and more, across the full gamut of types of divorce cases. We understand how matters ranging from length of marriage to income of each spouse to child support to pre/post nuptial agreements will impact the property settlement.
Don't rely on a novice or on a law firm without a solid reputation and a long track record of success. There is too much at stake. We at San Diego Divorce Attorney have been in business of helping those going through a divorce secure a 100% fair and equitable property division, for many, many years, and we stand ready to assist you in the same way.
Contact Us Today for Assistance
At San Diego Divorce Attorney, we stand ready to assist you in ensuring all community property of your marriage is divided fairly when the divorce is finalized. We have many years of experience in handling these matters, even in more complex and high profile cases.
Contact us today by calling 858-529-5150, and we will give you a free, no-obligation consultation and get started on your case.