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Key Issues in Family Law

- Property (& Debt)

Most California residents know the term "Community Property" and the presumption of equal division of assets acquired during marriage. But many issues arise where assets are "Separate Property" that is not included in the Community Property division.

 

There are many, many sources of confusion and fear on both sides - even when neither party wants to cause harm to the other or get more than the proper property division allocation. It is important for both parties to know that the Family Law in California is not confined to simple formalities (like the name on a bank account, credit card or even a deed for real property). Similarly, the division of retirement assets is based on how and when the retirement benefit (or portion of the benefit) was earned, not in whose name the funds or benefits are held.

 

Once both parties have a complete understanding of the existence, value and legal rights to property (and debt) division, including the "date of separation," then many cases become issues of simple accounting/bookkeeping.  However, there are many cases where values or character (community or separate) of property and debt must be argued to the court. Your lawyer should be able to counsel you privately regarding the strengths and weaknesses of your claim. Ultimately, clients must decide their positions in negotiations and litigation with an understanding of the costs and benefits of litigation or compromise. That cannot be assessed without analysis of property claims.

 

The key assets to consider are usually real estate and retirement pensions/savings.  However, family owned/operated businesses (whether acquired before or during the marriage) present special and often complicated issues of valuation. If your divorce includes these types of assets, you should consider consulting an attorney early in your case, well before negotiating a property division.

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