Virtually every divorce or dissolution of a relationship (domestic partnership or cohabitating relationship) will involve the division of real estate, business interests, financial assets or debt, and personal property.
If you and your partner have a premarital agreement, a postnuptial agreement or a cohabitation agreement in place, the division of property may be relatively straightforward. Without written guidance provided by a prior agreement, there will usually be a number of issues to resolve, including:
- Identification of all assets and debt.
- Determination of whether an asset (or debt) is community property or separate property (and therefore whether it will be divided or allocated to one member of the couple).
- Determination of the value of the asset. This can be particularly difficult with complex business assets, such as family-owned businesses or partnerships in a medical practice or law practice.
At the law office of Bennett & Erdman our legal team assists clients in addressing the challenges of marital property division through negotiating property settlement agreements or by aggressively representing our clients' interests in family court.
Our clients benefit from the high degree of skill and experience our lawyers can provide. Two of our attorneys are Certified Family Law Specialists.* Founding partner Roberta Bennett has been named by California Super Lawyers magazine as one of the top family law attorneys in California.
Contact Us Today
To discuss the division of marital property in your divorce or domestic partnership dissolution, call 1-877-820-6534. You can also contact us online and a member of our firm will respond quickly.
Community Property versus Separate Property in California Divorce
In California, property is characterized as either community property, which is allocated equally between the parties, or separate property, which remains with the individual who owns it.
Some property has a dual characterization, or has changed character during the relationship. It may once have been a personal asset but was used in such a way that it became community property. For example, one partner may have entered the relationship as the owner of a family business. They assume that because the business was in their family for years, it cannot be considered community property. In many instances, that is not the case. For example, the earnings and growth in assets of the business are often community property.
In the case of a couple who together owns a family business, a number of business issues will need to be considered in order to divide the business asset. Will the company or its assets be sold? Will the divorce affect the management structure of the company? Can other business partners buy out the spouse? We can provide guidance on these business issues.
Division of Community Debt
Just as with property and assets, marital debt will be divided between the two parties. Some debts will be joint (community) debt, and others will be the responsibility of the party who incurred the debt. While the court will generally seek to divide the community debt equally between the partners, there may be a reason for one party to take on more of the debt (for example, if one spouse has a higher income).
Breach of Fiduciary Duty
Sometimes one party to a marriage or domestic partnership engages in an activity that violates his or her fiduciary duties to the marital estate. For example, he or she may have hidden income or removed money from a joint bank account. These actions must be uncovered and addressed in the divorce proceeding.
*Certification by the California Board of Legal Specialization.