California is a community property state. This means that all property and earnings acquired during the marriage are presumed to be part of the marital estate, such as real estate, investments and bank accounts, retirement funds and even furniture. Therefore, it is to be equally and fairly divided at the time of divorce or legal separation; this is called a property settlement agreement.
Community Property & Exceptions
There are, however, exceptions to the community property presumption or rule. Property that is inherited, received as a gift, or that can be traced to property owned prior to the date of marriage or after the date of separation is considered separate property.
In addition, property may be affected by a prenuptial agreement or other signed agreements made during the marriage. Considered a very complex area of the law,determining whether property has properly been transferred (also referred to as transmuted) from community to separate or separate to community under the Family Law Code, should be reviewed by an experienced family law attorney.
Dividing Property in a Divorce
The process of legally separating or divorcing can be complicated, especially when a couple has acquired real estate and financial assets or incurred significant debts during their marriage. Disputes on how to divide property can occur, causing tempers or stress levels to rise. That’s one of the many reasons to hire the right family law attorney to guide you. At Viola Law, we’ll work together in securing your short- and long-term interests as assets and debts are assessed and divided.
As part of your divorce or legal separation, we’ll first meet with you to understand your unique situation, determine the character of your property – whether it is community or separate – and investigate if any community property has been transferred into separate property, or separate property into community property and analyze the validity of the transfer, and discuss your property settlement goals,
We find that property most often falls into these categories:
- Financial accounts including those related to children (e.g., college savings)
- Real estate including your primary residence, vacation home, lots or undeveloped land, commercial property and timeshares
- Personal property such as home furnishings, jewelry, artwork, electronics
- Business assets; Partnership interests; LLC’s and corporations
- Retirement benefits such as pensions, IRAs, 401(k)s
- Vehicles and recreational vehicles
- Investments such as stock options and stocks, RSU’s, bonds, annuities and mutual funds
- Loans, credit card and other debts
- Insurance policies
However, if you and your spouse or partner have reached agreements on some or all of your property issues, then mediation may be the best solution for you. At Viola Law we have a mediator on staff who can help put your agreements in writing and make sure the agreements are legally binding, and help you complete your divorce paperwork. If you and your spouse or partner have not reached any agreements, but wish to keep your case out of the traditional public courtroom setting, then hiring our private judge might be best for you.
One Phone Call Away
The attorneys at Viola Law can help you throughout the property division and settlement process. While dissolving a marriage or domestic partnership is never easy, you’ll have us by your side every step of the way.
Your first step is to call us. We’ll begin with an initial conversation, gathering information about your situation. We will schedule a meeting at our office; you’ll receive a checklist of all the documents we’ll need in order to help you and we will advise you on how best to proceed. As your legal representative, we always keep your information private and confidential.
Choosing Viola Law for Your Property Settlement and Agreement
Viola Law has a reputation for personalized service. We’re sensitive to our clients’ needs. We’ve helped thousands of families in San Mateo County and the surrounding Bay Area counties over 28+ years, guiding them through all aspects of marriage planning, divorce, child custody and spousal support agreements, and property settlements and division. Whatever your family law needs, we can help.
Have more questions about divorce? Check out our Property Characterization and Division Q&A.
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