San Diego Marital Settlement Agreements Attorney
Marital Property Settlement Agreements in California
One of the stickiest tasks in a divorce is making fair split of the assets and liabilities that the divorcing couple has accrued. An experienced divorce attorney in San Diego can help fairly split these assets. This requires first making a complete inventory of all the marital property and debts. California is a community property state, which means that all property and debt acquired after the date of the marriage through its termination date is considered to be owned equally by both spouses and should be equally split at the time of divorce, unless the parties agree to a different arrangement. Contact an attorney with experience handling marital settlement agreements.
The couple can decide for themselves on a fair split of property. If they are able to reach an agreement, whether on their own or as a result of negotiations involving their attorneys and mediators, that understanding will put it in writing in the form of a Marital Settlement Agreement, which both will sign. This agreement is ordered and decreed by the court and is incorporated into the Final Judgment of Dissolution of Marriage issued by the Superior Court. If the couple cannot come to an agreement, the Court will split the property in half.
Evidence of Separate Property
A spouse wishing to exclude certain property from the divorce as being non-marital property will need to be able to demonstrate with clearly documented proof that the property is not part of the marital assets. This can be done by producing:
- a valid statement in the deed or title to the property showing that the property is separate from the marriage, or
- a written agreement between the parties that the property is separate and not part of the community property.
If such proof is not available, the presumption is that the asset is community property, and it will be divided among the parties equally. This can be tricky, as many assets can’t be divided down the middle— a house, car, or boat, for example—so an equitable balance must be achieved.
The Discretion of the Court in Marital Property Division
The court, at its discretion, may determine that some property has been wrongly misappropriated or excluded by one party, and may add it back into the other party’s share.
Debt, Bankruptcy, and the Marital Property Settlement
Debt acquired during the marriage can also create a thorny problem. California law considers whether the debts were incurred of “necessaries” or “non-necessaries,” and will consider the needs and ability to pay of the respective spouses.
In some divorce situations, overwhelming debt and the financial distress that it causes may be a major factor leading to the decision to divorce. This can impact the Marital Property Settlement. In cases where marital debt is greater than either party has sufficient income to reasonably pay, you should discuss with your attorney whether it makes sense file bankruptcy as a couple before your divorce. This will simplify the division of property.
It is less expensive for a couple to file bankruptcy while the marriage is still in effect than for the two individuals to file separately after they are divorced. On the other hand, California does not allow doubling the asset exemption in bankruptcy for a couple as many states do, so depending on the total financial picture, it may not be the best choice for you. This is an area where you will need expert guidance from a skilled San Diego family lawyer experienced in handling divorce cases.
Professional Guidance for Your San Diego Divorce
Determining the value of assets is not an easy task. In high asset marriages especially, real estate appraisals, business valuations, portfolio analyses, and tracking of off-shore investments or other assets are required to determine the total amount of marital assets to be divided in the Marital Settlement Agreement. This requires that you have an attorney with access to CPAs, forensic accountants, real estate professionals, and other financial experts to ensure that all assets are included at an appropriate value, to facilitate a fair division.
At San Diego’s Boyd Law Firm, we are not only thoroughly familiar with all aspects of California law, we have ongoing relationships with respected financial and real estate professionals who are on call to assist in the evaluation and protection of assets, to ensure that you will receive your fair share in your settlement agreement.
Take Advantage of Our Complimentary Consultation
If you are facing a California divorce, we invite you to schedule a free, no-obligation consultation with a knowledgeable family law attorney at the Boyd Law Firm.