San Jose Property Division Attorney
Dividing Property During A Divorce
It can be overwhelming to understand how to divide property in California. Generally, property acquired during the marriage is equally divided at divorce, whereas premarital or inherited assets remain that person’s separate property. Complications can arise when property is acquired before marriage and is improved during the marriage or where that property is sold and used to purchase other assets.
Our San Jose property division attorneys at Foster Hsu, LLP, can help you understand property division in California and the steps you should take to ensure your rights are protected, and an equitable distribution takes place.
Make an appointment at our San Jose office by calling 408-841-7200.
How is Property Divided in a California Divorce?
Every piece of community property is thought to be owned equally by each spouse. Property such as cash or bank accounts can be easy to split, but other assets might not be so easily divisible. Land or personal property might have to be sold, with the parties splitting the proceeds, but selling the property is not always advisable. The court can award one piece of property to one spouse while giving the other spouse another piece of property, so long as the two assets are equal in value. In the case of a large-value asset such as a home, it might take many other assets on the other side to make for an equal exchange. At Foster Hsu, LLP, our San Jose divorce lawyers can help ensure that property is properly identified as community or separate property and valued appropriately.
Property division is not always in the hands of the judge overseeing the divorce. If the parties can work out the property division between themselves, the court will generally approve any resolution the parties come up with. We can represent your interests in negotiations and work with your spouse to come up with a fair, detailed agreement that the court can approve.
What if the Parties Have a Prenuptial or Postnuptial Agreement?
If the spouses executed a prenuptial or postnuptial agreement that made provisions for how property would be divided in a divorce, the court would uphold and enforce the terms of that agreement. Sometimes a party will challenge a prenup when it comes time to enforce it, so it’s important when making a marital agreement to have a skilled and knowledgeable family law attorney negotiate, draft or review the agreement to make sure it will hold up in court.
What if One Spouse Owned a Business Before and During the Marriage?
California courts have used one of two different methods for the last 100 years to determine how much business appreciation is community property and how much is separate. One method (Pereira accounting) is more appropriate where the reason for the growth and success of the business is the owner’s labor or management. In Pereira accounting, a reasonable rate of return is computed and added to the principal of the business, which are considered the owner’s separate property, and any other value is community property. On the other hand, if market factors or the nature of the business itself are responsible for the business’ growth and success, so-called Van Camp accounting is more often used. In this method, the market value of management services less community expenses is considered community property, while the rest is separate.
Business valuation in California is a complicated and complex area. Our attorneys can help you understand which valuation method applies in your situation, and we’ll prepare and present strong arguments to the court, arguing for the appropriate method of accounting for a fair and proper result.
We Can Help With Nontraditional Assets
As you are considering the assets you need to divide, some are easy to overlook. Nontraditional assets, such as airline miles and cryptocurrencies, can leave one spouse with an unequal share.
Consider whether any of your accounts have rewards tied to them that you should split with your spouse. You should also consider whether your spouse may have a “nontraditional” account, which should be divided.
Support During Property Division in Your Santa Clara County Divorce
Our San Jose property division attorneys have answers to your property division questions. Make an appointment with a lawyer in our San Jose office by calling 408-841-7200 or contact us online.