What matters in property division and valuation
The law says that the court shall order division of property in a manner that the court deems “just and right”, having due regard for the rights of each party and any children of the marriage. Only community property is divisible by the court; the court cannot divest a spouse of his/her separate property.
The court will initially presume that all property owned at the time of divorce is community property. A spouse must prove that an item of property is his/her separate property . However, if separate property has been “comingled” to the point that the separate property status cannot be clearly determined, the court will be required to rule that such property is community.
Generally, community property is all property acquired during the marriage. However, exceptions do exist. Some examples of community property may include, wages earned during a marriage, retirement plan contributions, pension plans, 401ks, IRAs, homes, cars, stock options, country club memberships, life insurance and more.
Key Factors that Govern the Division of Property:
- Earning capacity and the ability to support oneself
- Education of the spouses
- Health of the spouses
- The size of a spouse’s separate property estate
- Liabilities of the spouses
- Fraudulent conduct and wasting of assets
- Family violence
- Wrongful conduct
Assets are not necessarily divided based solely on dollar value. Other factors include:
- short and long- term financial security;
- cost basis and any tax implications; and
- liquidity and marketability.
It is imperative to consult a lawyer to ascertain which factors would affect your specific case.
In order to make an informed decision regarding property division, one must have a complete understanding of all assets and their values, as well as, all liabilities. This is true whether a case will be settled or tried to the court.
In the event of a trial, the court must determine the fair market value of all property as of the date of divorce. In the event the property does not have a fair market value, the court shall determine the value of the property to the owner. This can be a challenging and complicated process.
One of the more difficult assets to value is an interest in a closely held business. If the business interest were acquired during marriage, it is generally considered community property. If the business interest were owned prior to the date of marriage or acquired with separate funds during marriage, it generally will be considered separate property.
Keeping Your Business intact
Making a Difference Property Division Cases
Handling the Matter with Geary, Porter & Donovan, P.C. Family Law
We have extensive experience in complex property division, including:
- High asset divorce;
- Business and partnership interests;
- Real estate interests;
- Stock options and other forms of executive compensation; and
- Retirement plans/401(k) plans.
We set the bar high with uncompromising preparedness. We offer our clients access and the resources of our in-house multi-disciplinary legal team. As a result, we are nimble, thorough and proactive.
"We acknowledge and understand all aspects of a complicated family law case. We are meticulous with the details."
- Michael Geary
"A lawyer handling a complex property case is much like the captain of a ship. He must manage all aspects of the voyage while never forgetting that the client directs the ship."
- Larry L Martin