Division of Property in Divorce
The division of property in divorce involves 4 distinct steps: identification, characterization, valuation and division. How costly it is depends on both parties’ knowledge and cooperation of their assets and debts.
Identification is arguably the hardest step. Many people are in the dark about their assets and debts. If you do not know the extent of the marital balance sheet, you will need to hire lawyers and forensic accountants to help you. If at all possible, during the marriage, both parties should have equal responsibility and access to finances at all times. It is possible for both to be an in-spouse, but it takes active participation.
Identification of assets involves exchanging financial disclosures. The exchange of Preliminary Declarations of Disclosures is mandatory. Even if you two decide settlement is best, the settlement cannot be approve until you both attest that you have exchanged disclosures.
You may also obtain information by propounding discovery on the other side. Formal discovery has deadlines and remedies for non-cooperation.
Characterization of property is determining whether it is separate or community. California is a community property state. All property acquired during the marriage and after the date of separation is community, and must be divided in a divorce.
In long-term marriages (and even in short-term marriages), whether something is separate or community is in dispute. If you own property before the marriage, it is always a good idea to protect this with a prenuptial agreement.
Valuation is determining the fair market value of the property. How much is this property worth? Is all the property you are awarded equal to what the other side is awarded? If one side is receiving MORE, there would be an equalization payment paid to the other side.
After you have properly identified, characterized and valued the assets and debts, the property is ready to be divided. Hopefully the division is smooth sailing; if not, you will need to set the case for trial (property division is a trial issue, unlike custody and support, which can be handled via a temporary hearing).