Division of Marital Property

At Gower Law & Mediation, our attorneys are experienced in litigating high asset and complex division of marital property.  We understand that obtaining your rightful and lawful share of the marital assets is often the most important goal in a divorce case. Our attorney’s conduct extensive discovery including subpoenaing financial records to make sure every asset is fully disclosed and accounted for.

Separate vs. Marital Property

Property you and your spouse acquired during your marriage is considered community property and is subject in California to equal division. Assets you owned prior to the marriage or that were obtained by gift or inheritance during the marriage may be counted as separate property to which your spouse has no legal interests. Determining whether property is community, separate or both can be a complex process and requires a thorough analysis of the entire financial picture. One of the first steps our attorneys take is to properly categorize your list of assets, including pensions, 401ks, stock options, savings accounts, real estate and timeshares.

California law states that community property is to be equally divided upon marital dissolution. However, exactly which assets and debts properly belong to the community, and which are separate property, is not always easy, and the process of properly classifying and dividing property can be very difficult. Over the course of a marriage assets can become mixed. A separate asset may be used to acquire a portion of a community asset. Identifying and valuing community property can be hotly contested and may pose significant challenges in the division of assets and debts in marital dissolution or legal separation actions.

Preliminary Declarations of Disclosure

In every divorce case, both parties are required to exchange asset, debt and income declarations. These declarations serve to ensure that each party is fully informed of all of the marital assets, debts and income streams. The Schedule of Assets and Debts form contains a complete list of all assets and debts owned by the parties, including both community and separate property.  There can be severe legal repercussions if either party fails to fully disclose all assets or debts. If our client suspects that assets or debts are not fully being disclosed, our attorneys will generally conduct extensive financial discovery, which often involves subpoenaing financial institutions and employers.

Since the asset and debt disclosures are signed under penalty of perjury, it is imperative that the form be completed honestly and completely.  In addition, if the forms are properly completed at the outset of the divorce, it speeds up the likelihood of settlement because both parties will be aware of all assets and liabilities and can begin meaningful settlement discussions.

Date of Separation

The “date of separation” is an important legal term and must be included on any divorce filing.  The date of separation occurs when spouses “physically separate” from each other. Although this standard is somewhat subjective, the date of separation is often determined by when one spouse objectively indicates that the marriage is over, such as moving out of the residence or beginning to sleep in a separate bedroom.  The date of separation is important in all marital dissolution and divorce cases because the acquisition of assets or debts after the date of separation by either spouse will be considered their separate property.  This can be very important if either spouse starts acquiring a lot of debt after separation or begin to accumulate assets.

Valuating Community Assets

Although the value of most assets, such as bank accounts or retirement accounts is easily determined, some assets are far more difficult to properly value. For instance, real estate or a small business may need to be professionally valued. Generally, in litigation involving the division of complex community estates, valuation experts can be very helpful and cost effective.  For instance, an expert may be appointed to estimate the value of a small business, real estate or collectibles.

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