Property Division

We understand that going through a divorce can be incredibly challenging and emotionally draining. In California, assets acquired during marriage are considered community property and are divided equally upon divorce, unlike in other states where assets are divided equitably.

Knowing these rules helps you anticipate the financial impact of your divorce.

At Moshtael Family Law, we are dedicated to ensuring a fair and just outcome in property division cases.

Our experienced team handles complex property matters with the utmost care, ensuring an equitable distribution of assets to safeguard your future.

Types of Property in a San Diego Divorce

In a divorce, several types of property must be considered and divided. Understanding these various property types is essential for achieving a fair and equitable division of assets

Separate Property

Separate property refers to any assets owned by either party before marriage. This includes gifts and inheritances intended for one party, as well as property obtained or earned after separation. Accurately identifying separate properties requires determining the date of separation.

Commingled Property

Commingled property refers to assets where separate and marital properties have been combined, making it challenging to distinguish individual ownership.

This mixing can complicate property division during a divorce, requiring thorough analysis to determine the sources and ownership proportions of the involved assets.

When to Hire a Lawyer for Property Division?

If your divorce involves complex or high-value assets, disputes over asset classification, or significant debt, hiring a lawyer is essential to ensure a fair and equitable division of property.

Legal expertise is crucial to effectively address these complexities and safeguard your financial interests.

Experienced Property Division Assistance in San Diego

If you are going through a divorce, you don’t have to worry about property division. Let us use our experience to alleviate that burden. Here are the services we offer:

Property Valuation

We utilize comprehensive methods for valuing various types of properties, including:

• Real Estate: Using market analysis and appraisals to determine current market value.
• Businesses: Employing forensic accountants to evaluate business interests and future earnings.
• Retirement Accounts: Assessing the value of pensions, 401(k)s, and other retirement plans through specialized financial experts.

Handling Complex Cases

We excel in managing intricate property division scenarios such as:

• Commingled Properties: Navigating cases where separate and community properties are mixed.
• Business Valuations: Addressing the division of business assets and ongoing business concerns.
• Hidden Assets: Detecting and appraising concealed or undervalued assets to ensure fair splitting of community property.

Specialized Legal Services for Complex Divorce Cases

We understand that each divorce case is unique and may present distinct challenges. That’s why we offer specialized services to address your individual needs and circumstances

Retirement Accounts and Pensions

We have expertise in dividing retirement accounts and pensions, which often require specialized strategies to ensure fair break-up. This includes understanding and handling Qualified Domestic Relations Orders (QDROs).

Deferred Compensation

Deferred compensation, such as stock options and other deferred earnings, requires careful handling to ensure they are accurately valued and fairly divided.

Business Interests

Valuing and dividing business interests is one of our core competencies. We work with forensic accountants and other experts to accurately value businesses and ensure a fair splitting of business assets.

Allocation of Assets and Debts in San Diego Divorce

This process starts with a detailed inventory of marital assets and debts. Professional appraisers and financial experts provide unbiased valuations, ensuring equitable distribution and preventing disputes.

Misvaluations can cause financial imbalances post-divorce. Experienced family law attorneys analyze financial documents and assess asset values, crucial in high-net-worth divorces.

By relying on experts, both parties achieve a balanced settlement.

Who Gets the Family Home?

If the couple’s home is determined to be separate from marital property, the owning spouse will retain ownership after the divorce.

If it’s deemed to be community property, there are several methods by which it can be divided, either through mutual agreement or by court order, often with the assistance of a divorce attorney in san diego.

Selling the Marital House and Dividing the Proceeds

A popular way to divide the family home in a divorce is to sell the community asset and split the proceeds equally between the two parties.

This may be the only viable solution if neither party can afford to keep the home individually post-dissolution. If the property has negative equity, which means the outstanding mortgage exceeds the property’s current value, both individuals will share the loss equally.

Spousal Buyout

Another alternative for dividing family house property is for one party to assume complete ownership of the property and financially compensate the other for their portion (known as a ‘buyout’). Various costs need to be considered when determining whether the buying party can afford to take full ownership of the home, including:

• Mortgage payments
• Mortgage payments
• Homeowners Insurance
• Maintenance and repair costs
• Utilities
• HOA fees (if applicable)Deferred Sale (Spouses Stay on Title)

If the separating parents have minor children, the judge may issue a ‘deferred sale of home’ order, temporarily delaying the sale of the property.

During this period, both parties continue to jointly own the home, with the custodial parent granted exclusive rights to use and possess the property. This order aims to minimize the disruption to the children during the separation.

It is best to consult with our lawyers at Moshtael Family Law to determine if a deferred sale order is appropriate in your situation.

Business Division in a San Diego Divorce

Businesses started during a marriage are generally considered community property. This means both parties have an equal interest in the business assets and debts, regardless of who started the enterprise or who managed it during the marriage.

This can be a significant concern for business owners who have invested a lot of time, effort, and money into building a successful business.

Even if the venture was started before the marriage, any growth, expansion, or profits earned during the marriage could be considered community property and subject to division.

This could result in the business owner having to sell or give up as much as 50% of their business to their partner, significantly impacting their plans for the business.

In these cases, we can help you explore the best possible options, such as:

• Buyout Option: One owner retains full ownership by purchasing the other’s share. This may involve relinquishing rights to other assets or providing monetary compensation equal to half the business’s value.
• Partial Ownership Offer: One owner offers the other partial ownership, possibly through granting stocks or control over specific operations. This maintains the business as a unified entity but may require sharing profits or control.
• Splitting into Two Entities: The owners divide the business into two separate entities, potentially creating competing companies. They can agree on non-compete or non-poaching clauses to manage competition post-divorce.
• Selling the Business: If buying out or offering partial ownership isn’t feasible, selling the business becomes an option. This is suitable when the owner sees little future financial benefit in running the business alone the separation.
• Business Dissolution: As a last resort, the owners may dissolve the business if they can’t agree on terms or find a buyer. Bankruptcy may be necessary if there are outstanding debts.

When deciding which option is best for a particular situation, it’s essential to consider the long-term financial implications for both parties and the potential impact on the business itself.

Division of Retirement Assets

In San Diego County, any retirement or pension benefits that you and your partner have accrued during the marriage until the separation date are considered community property and must be divided. Any pension or retirement benefits accrued before marriage or after separation are considered separate property and are not subject to division.

The allocation of pension or retirement benefits accumulated during the marriage can vary depending on several factors, but it is typically split equally based on the date of separation. In cases where each party has an equal community property interest in a pension or retirement plan, they can each retain their plan. If the plans have different values, they must be evaluated and divided equitably.

A Qualified Domestic Relations Order (QDRO) is used to divide pension assets between two former spouses. A QDRO is a specialized court order that transfers a specific portion of retirement assets or pension benefits from one party to the other. It is entered separately from the legal judgment and must be negotiated and signed by both parties and their respective lawyers before receiving judicial approval.

Professional Licenses and Educational Degrees in a Property Division

Under state law, if one party obtains a college degree or professional license during the marriage, the other party has community property rights and can claim reimbursement for the costs incurred in obtaining the degree or license, including interest.

This typically includes expenses related to fees, books, and tuition. The law does not entitle the other party to a share in the increased earning potential resulting from the degree or license of one party. Nonetheless, the enhanced earning ability can be considered in determining spousal support (alimony).

During the dissolution of your marriage, any loans taken out for education or professional licenses will be assigned to the individual who incurred those debts

Reimbursements Under Family Code 2640

It is sometimes necessary to address whether one party is entitled to reimbursement for using their separate assets to acquire community property.

When a party contributes their separate assets to obtain a joint or community asset, they are entitled to reimbursement for the amount they contributed, without interest or appreciation. This ensures that each party receives fair compensation for their contributions to acquiring community assets.

To illustrate: John has a separate bank account with $250,000, acquired through inheritance or brought into the marriage. A year into their marriage, the parties use this separate asset money to purchase their family home, and they co-own the property.

Assuming that John can prove that he channeled his separate asset money towards the down payment on their family home, he has a right to receive financial reimbursement (without interest or appreciation), even if they sold the first home and bought a new one later during their marriage.

What Happens to Family Pets in a Divorce?

During legal proceedings, deciding ownership of pets can be contentious. In San Diego, either party may petition the judge for custody of their beloved pet.

The court has the authority to award sole or joint ownership based on the pet’s welfare, ensuring protection from harm and access to essential care like food, water, shelter, and medical attention.

Dividing Community Debts in a Divorce

Unless both spouses have a prenuptial or postnuptial agreement a family court will order them to divide their community assets or debts equally.

If the value of the community debts exceeds the value of the community assets, then an exception to the 50-50 property rule will apply.

In such cases, state law permits courts to order an unequal allocation of debts by assigning excess debt to the party in a better financial position. While marital property is typically divided equally, debt division can differ.

Each party is responsible for paying off the debts assigned to them according to the terms of their settlement.

If one party fails to make payments on their allocated debt, creditors may pursue them for overdue payments. Both parties should understand and manage their assigned debts to avoid legal repercussions.

You can file a motion with the court to enforce the debt allocation if creditors contact you about debts assigned to your former partner in your settlement. This step can protect you from liability for debts designated to your ex-spouse in the divorce agreement

What Happens When the Marital Property is Owned in Another State

Quasi-community property is a term used to describe property acquired during the marriage but located in another state. This property is treated just like community property and is subject to allocation during divorce proceedings.

Family courts do not have jurisdiction over the actual property located in another state, but they can still enforce the allocation of the property by ordering one party to transfer their interest to the other party.

It means that even if a property is located in another state, it can be allocated as part of the divorce settlement. The court can enforce this rule, ensuring both parties receive a fair and equitable property distribution.

Legal Process and Support in Your Divorce

Going through a divorce involves several critical steps that require careful attention and support. Here’s an overview of the key stages involved:

Consultation Process

During the first consultation, we take the time to understand your unique situation and goals. This initial meeting includes a detailed discussion of your assets, liabilities, and any specific concerns you may have about the property division process. Our goal is to provide clear guidance and outline the steps ahead.

Expert Collaboration

We collaborate with a network of experts, including financial planners, appraisers, and forensic accountants, to ensure a thorough and accurate evaluation of all assets. This collaboration helps in crafting a well-informed legal strategy tailored to your needs.

Preliminary Declarations of Disclosure

The Preliminary Declarations of Disclosure are crucial as they involve a comprehensive listing of all assets and debts, ensuring full transparency and fairness.

This step is essential for both parties to make informed decisions and reach an equitable division of property. We guide you through this process to ensure accuracy and compliance with legal requirements.

Common Issues in Property Division

Property division during a divorce often involves disputes over asset valuation and the classification of marital versus separate property. Understanding these complexities is essential for a fair outcome.​

Misappropriated Property

Misappropriated property refers to assets that one part has improperly used or hidden. The law ensures that any misappropriated property is accounted for and appropriately divided during the property division process.

Personal Injury Proceeds

Personal injury proceeds can be a complex area in the division of assets. These funds are typically considered as personal compensation, but there are exceptions. We ensure these funds are properly categorized and distributed according to the law.

Out-of-State Property

Out-of-state property is treated as quasi-community property in California. This means it is subject to allocation as if it were located in California, ensuring an equitable distribution.

What Clients Have to Say About Their Experience

Here are some reviews from clients who have worked with us:

“Thank you Navid Moshtael for taking such good care of me in my long- drawn out-ugly divorce. This firm puts family first and listens to you. I knew I was in good hands knowing how aggressive they could be but felt I was in even better hands when they listened to me and valued my opinion” Juli F.

“My third Attorney, but if he had been my first, my divorce from a sadistic sociopath with deep pockets and a shameless attorney would not have gone on for seven years. Mr. Moshtael is an empathetic softie who seems more driven by the need to right the wrongs and halt inappropriate behavior than by the need to make money.” Eve F.

Get Experienced Property Division Lawyers to Protect Your Rights

Property division can be a major source of conflict in a separation. Determining how to fairly distribute assets, debts, and property can be challenging and emotional.

Our experienced San Diego property division lawyers are here to protect your interests.

If your divorce involves high-value assets like real estate, businesses, investments, and stocks, we have the expertise to ensure the best outcome.

Call us now at 619-639-9898 to discuss the details of your case and how we can assist you, or reach out to us online.