Family Law Attorney Tips: Asset Division in Dissolution

Family Law Attorney Tips: Asset Division in Dissolution

18:57 04 October in Blog Posts, Family Law
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A family law attorney in Santa Rosa, California, Richard Sax is always here to answer questions about your upcoming trial. A common question that he has been asked as a family law attorney is: when are ASSETS VALUED for purposes of DIVISION in a California DISSOLUTION?

Q. My wife and I separated two years ago and we have decided to divorce. We don’t agree on the date we should use to value some of our property, like the home where she’s been living in with the children. She wants it to be now while prices are down, but when I left our deal was that she got that value. I don’t think it is fair. What is a judge going to do?

 

A: As a family law attorney, it is always my hope that spouses can agree on as many issues as possible, without court intervention. One never knows for sure what a Court will do, and my experience is that people are far better off working through their disagreements by way of Mediation. One reason why is to ensure you are in charge of your life, not a stranger. It is possible to mediate parts of your divorce, like this issue.

Still, valuing real property is not difficult. Family Code section 2552(a) directs the court to “value assets and liabilities as near as practicable to the time of trial.” Time of trial is also the equivalent of the time of settlement – in order words, if you cannot settle your divorce and you take it to a judge, that will be the time of trial so the same rule for the date of valuation should apply to your settlement negotiations.

Family Code section 2552(b), however, gives the court discretion to pick another date before trial for the valuation of property “for good cause” in order to “accomplish an equal division of the community estate … in an equitable manner.” This concept is called an “alternate valuation date.” It is often applied in cases of business valuations, which is a complex topic I will separately address, but the basic reasons for the potential different treatment includes the fact that business values can be intentionally depressed by the spouse who controls the assets (and so it may not be fair to apply a lower value) or because the “in-spouse” has contributed substantial value to the company since separation and it is not necessarily fair that the other spouse share those benefits.

This is a major issue in dividing businesses or professional practices in family law, where you are many months down the road from your separation. All post date of separation time, skill and efforts belong to each spouse and not to them jointly – as was the case before separation. All that blood, sweat, and tears after separating may have dramatically increased the value of the business; or the spouse in control may have trashed the business intentionally to avoid a higher buy-out.

Here you might argue that you and your spouse reached a verbal agreement to divide all your assets two years ago—if that is in fact what you did—in order to hold to those values. But verbal agreements are difficult to prove if they are not admitted by the other party, absent witnesses and she will continue to have various defenses where she was not independently advised before reaching agreement.

Most family law courts are going to value passive assets like houses or investments or pensions at the time of trial. That does not mean that post-separation increases in value, like increased equity by paying down principal on a mortgage, or contributions to a pension after the date of separation, will not be reimbursed to one or the other of you to compensate the separate property (post-separation) contributions.

If you do seek an alternate valuation date, you need to file a Notice of Motion to Bifurcate the issue (FL-315), along with the accompanying declaration establishing why this is more fair and appropriate than the basic rule. A bifurcation is essentially a request of the court to carve off one or more issues in the divorce for separate trial or adjudication. It is often used where a call needs to be made on one issue that, once decided, will assist in resolving other aspects of the case.

If you have any questions or concerns about your upcoming trial, the family law attorneys at the Law Offices of Richard Sax in Santa Rosa, California are happy to help. Contact us at 707-525-1824 or email richard@rsaxlaw.com to schedule a free initial consultation.