Family law attorney
Serving Fresno Since 1979
California is a community property state whereby the division of property is to be fairly and equally divided. In the event of an unequal division of community property, one party will most of the time owe an equalization payment to the other party, in order to equalize the division of property.
Family Code Section 760 defines community property as:
Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
If a party is making a claim of separate property, whether it be a claim in real property or a financial account, that separate interest may require a tracing to make such determination.
Family Code Section 770 defines separate property as follows:
The parties prepare a Schedule of Assets and Debts, which is part of the disclosure process to determine the assets and debts, and the characterization of such assets and debts as separate or community.
In some cases, it is not possible for the employee spouse to buy out the community interest in a pension plan. In these cases, each party would be awarded one-half of the community interest in the pension plan pursuant to a property Qualified Domestic Relations Order (“QDRO”) or Domestic Relations Order (“DRO”). The payment of the pension funds to the non-employee spouse (“alternate payee”) is determined by the options available pursuant to the plan, however, in many cases, when the employee spouse retires. To determine the community interest in a pension plan, the plan is actuarially valued, if one party wishes to buy out the other.
In cases where there is equity in a home, the home will be appraised by a certified real estate appraiser, if the parties cannot agree on the fair market value of the home. The value of the home, for the purpose of division of property, is the fair market value less the principal balance at the time closest to settlement or trial.
In the event the estate of the parties includes a business, it is usually necessary to have a business valuation prepared by a forensic accountant, experienced in family law, in order to determine the value of the business for property division. This forensic accountant will also prepare a cash flow analysis of the self-employed spouse for the purpose of determining their income for support purposes.