Property Division

PRACTICE AREAS

PROPERTY DIVISION ATTORNEY SAN DIEGO

Characterizing the status of property interests as “community” (and “quasi-community” or “quasi-marital”) or “separate” property division is the key starting point for the resolution of marital property rights and obligations. “Characterization must take place to determine the rights and liabilities of the parties on a particular asset or obligation and is an integral part of the division of property on marital dissolution.” [Marriage of Rossin (2009) 172 CA4th 725, 732, 91 CR3d 427, 431 (internal quotes omitted); Marriage of Haines (1995) 33 CA4th 277, 291, 39 CR2d 673, 682; see also Kircher v. Kircher (2010) 189 CA4th 1105, 1113, 117 CR3d 254, 260]

The parties may, of course, agree to the status of all or any part of their property division interests. But absent such agreement, characterization disputes are decided by a vast body of statutory and case law. Factors determinative of separate vs. community property characterization are the time of the property’s acquisition, the operation of various presumptions, and whether there has been an effective transmutation from separate to community or vice versa. [Marriage of Rossin, supra, 172 CA4th at 732, 91 CR3d at 431; Marriage of Haines, supra, 33 CA4th at 291, 39 CR2d at 682]

In general, property acquired during the marriage is community property. Assets acquired before or after marriage is separate property. In general, the parties are each awarded their sole and separate property, and the community property division happens as fairly as possible, at times with some form of equalization payment, by the Court if the parties cannot reach their agreement as to the division of the community property.

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