Items to Consider Before Pursuing a High-Asset Divorce
Nearly every couple going through a divorce will have some things in common. At least one side is likely to experience a sense of being wronged, heartbreak, denial – maybe even feel spiteful. While this may be a basic formula in any divorce, special attention should be paid by those individuals who anticipate that in the course of their divorce they will need to divide high-value and/or complex assets. This article aims to help readers begin to think about some key items as they consider a potential divorce down the road.
California Community Property Law
California operates under the community property system. This means that a lot of the assets that you enjoy as a couple are likely going to be split evenly between you if and when you divorce. However; the exceptions to the community property rule are incredibly important and can greatly impact what you should expect to walk away with at the end of the divorce.
Remember Any Applicable Pre-nuptial or Post-nuptial Agreement
One item you should keep in mind is the existence of a legally valid pre-nuptial or post-nuptial agreement. The language of these agreements acts as contractually binding terms. If you signed a pre-nuptial or post-nuptial agreement then it is vital that you review these documents again so you understand what to expect moving forward.
If you believe that the pre-nuptial or post-nuptial agreement should be invalidated because it was entered into fraudulently, or while under improper duress, reach out to an experienced attorney to discuss the possibility of challenging the terms of the agreement in court.
Date of Separation is Vital
Any income that is earned by either spouse after the date of separation is considered to not be marital property. This means that it is not subject to division between the parties. It will be considered separate property by the court. This includes any kind of income, to include salary, bonuses, fringe benefits, etc. Any assets bought with those funds will also be considered separate property.
California law defines the date of separation at California Family Code Section 70(a), which states that the date of separation is considered to be the date that a complete and final break in the marital relationship occurs. California will take as evidence of the break, one partner telling the other that they want a divorce, and behaving consistently with the intent to not be married to the spouse any longer.
This means that it takes more than one partner stating that they are unhappy, or threatening to divorce and then continuing on with life as normal. A person must actually act as though they intend to get divorced.
Dividing Complex Assets
Money and property are not the only assets that may be subject to division in a divorce. In certain cases, other asset classes could prove complicated to navigate – one common item is retirement benefits, but several other items must also be kept in mind. To ensure that you put your best foot forward, it is very important to consult with an experienced property division attorney on the potential of dividing several items, including the following.
Equity Compensation
Equity compensation is “non-cash pay” employers provide to employees. Meaning, for example, instead of paying an employee a higher salary or bonus, a person receives equity in the company instead. Equity compensation might include:
- Restricted stock units (RSUs)
- Incentive Stock Options (ISO)
- Non-Qualified Stock Options (NSOs)
- Employee Stock Purchase Plans (ESPPs)
These forms of compensation are not your typical monetary payout of a paycheck, but can be incredibly valuable. On the other hand, these items can end up having no value if the individual chooses to leave the company.
Businesses
If either spouse buys or builds a company while married, ownership of the business is subject to division between the parties. The couple can choose to do this in a number of ways, to include splitting ownership, selling the company and dividing the profits, one spouse buying out the rights of the other, etc.
Inheritances
Inheritances not ordinarily subject to division in divorce. However, there is an exception to this if the inheritance was commingled with marital assets. This may happen, for example, if an inheritance was deposited into a joint bank account. In such cases there is a strong likelihood that the amount deposited into the joint account will be considered as marital property subject to division.
Contact Cardwell, Steigerwald Young
High-asset property division in California is complex. You owe it to yourself to engage with an experienced, well-rounded team of legal counselors and other specialists who can provide you with the advice and counsel you need to come to the best possible resolution in your divorce. Contact the San Francisco property division lawyers at Cardwell, Steigerwald Young to begin discussing the circumstances of your case today.
Sources:
selfhelp.courts.ca.gov/divorce/property-debts
investopedia.com/articles/retirement/03/060403.asp
