MARITAL SETTLEMENT AGREEMENTS IN CALIFORNIA
One of the hardest undertakings in a divorce is creating a fair division of the assets and liabilities that the divorcing couple has accrued. An experienced divorce attorney in San Diego can help justly split these assets and debts. This process requires both parties to fully disclose his or her financial dealings and write a complete inventory of all marital property and debts. Since California is a community property state, all property and debt acquired during the marriage until the date of separation is considered to be owned jointly by both spouses and should be equally divided at the time of divorce, unless the parties agree to a different arrangement. Property division, especially when it comes to the marital home can be a very contentious aspect of your divorce. You will want to contact a San Diego Family Law Lawyer at Mellman & Mellman, LLP who are experienced with negotiating, drafting, and executing 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.
Formal Marital Settlement Agreements that are properly drafted will include:
- Real estate
- Bank accounts
- Businesses owned by the family
- Securities and other investments
- Retirement accounts
- Out-of-state property
- Assets held outside of the country
- Vehicles
- Boats
- Art, jewelry, and other valuables
It will be necessary to determine which assets are joint and which, if any, are separate, owned exclusively by one partner, such as inheritances or personal gifts, as these are generally excluded from the property division. It is not always clear if a particular asset is separately owned or community property. Your attorney will understand the application of California law in these cases and will advise you. In many cases it is not desirable, or even possible, to divide a particular asset down the middle; however, each party should receive assets totaling the same amount.
PROPERTY OBTAINED BEFORE MARRIAGE OR THROUGH INHERITANCE SHOULD BE EXCLUDED FROM MARITAL PROPERTY
A spouse wanting to omit certain property from the divorce as being separate property must demonstrate with clearly documented proof that the property is not part of the marital community. 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. California law places the burden of proof on the party claiming separate property, if the property was acquired during the course of the marriage. If you have property that you feel should be excluded, or if your spouse is wrongfully attempting to exclude property from your divorce settlement, your attorney will work with you to protect your assets and property interests.
The attorneys at Mellman & Mellman, LLP will advocate on our behalf that an asset should or should not be community property. Property division can be tricky and a complicated area of the law, as many assets can’t be divided down the middle. For example, a house, car, or boat cannot be physically divided so an equitable division must be achieved.
DRAFTING MARITAL SETTLEMENT AGREEMENTS
Preferably, you and your soon-to-be-ex spouse, with the assistance of your attorney, will be able to agree with the terms of a property settlement agreement that works for the two of you. Your lawyer will assist you in negotiating a fair division and will draft a contract called a Marital Settlement Agreement, which you both will sign, to be included in your final divorce order. This is important in the event that one or the other spouse fails to honor the agreement. Having it included in the court order will make it enforceable if later disagreements arise.
Calculating 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 essential to determine the total amount of marital assets to be divided in the Marital Settlement Agreement. This necessitates 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.
The lawyers at Mellman & Mellman, LLP, are not only thoroughly familiar with all aspects of California law, we have enduring relationships with respected financial and real estate professionals who are available to assist in the assessment and preservation of assets, to ensure that you will receive your fair share in your settlement agreement.
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If you are contemplating filing for divorce or you are on the receiving end of a divorce, we invite you to schedule a free, no-obligation consultation with a compassionate family law attorneys at the San Diego based Mellman & Mellman, LLP law firm.