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Division of Property

Division of Property is often one of the most complicated areas of the law in a divorce proceeding. Although seemingly simple on its face, there can be difficulties sorting out which of the property is actually community, and how a fair division can be achieved. I have seen parties spend literally tens of thousands of dollars on attorneys and experts to help them sort out issues involving valuation of businesses, tracing issues involving separate property contributions to acquisitions of property issues involving the fiduciary responsibilities of parties when properties are transferred or investments are made on behalf of the community, and a myriad of other issues.

My experience as a Judicial Officer has been that oftentimes the amount of money and resources spent in Court (with a very unpredictable result) will exceed the amount in dispute! Although experts and attorneys certainly have an important role in educating parties with respect  to their rights, and what is fair and appropriate within the law, there are very few instances where the best method to divide property is in an adversarial proceeding with a judicial officer deciding your fate.

Mediation is a far better alternative than resolving division of property issues by going to Court for several reasons. First, mediating a property issue can be accomplished at a fraction of the cost and much more quickly than a protracted court proceeding.  Second, mediation allows the parties to maintain control over the outcome, rather than leaving the decision to a judicial officer who may or may not have the background or experience to fairly resolve the issues. Third, the Family Code requires that both parties be completely honest and open in the disclosure of assets and liabilities, and there are significant penalties against any party that does not provide complete disclosure.  Therefore, both parties are in a good position to know the extent of the community estate without going to a trial, and can therefore fairly divide the assets and liabilities without a trial.

For all these reasons, mediation is the best alternative for parties to amicably settle property issues that are involved in divorce proceedings.  

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