Property Characterization Appeal
A brief discussion on the statutory framework for characterization is a start to understand how a San Diego or greater California property characterization appeal arises. California Family Code section 760 states: “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” Under this section, there is a general presumption that property acquired during marriage by either spouse other than by gift or inheritance is community property unless traceable to a separate property source.
California Family Code section 770 states: “Separate property of a married person includes all of the following: [¶] (1) All property owned by the person before marriage. [¶] (2) All property acquired by the person after marriage by gift, bequest, devise, or descent. [¶] (3) The rents, issues, and profits of the property described in this section.” (§ 770, subd. (a).) Our state constitution similarly provides: “Property owned before marriage or acquired during marriage by gift, will, or inheritance is separate property.” (Cal. Const., Art. I, § 21.) In addition, by statute, the spouses' post-separation “earnings and accumulations” are separate property. (§ 771, subd. (a).)
In San Diego and California characterization of property, for the purpose of community property law, refers to the process of classifying property as separate, community, or quasi-community.
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Characterization must take place in order to determine the rights and liabilities of the parties with respect to a particular asset or obligation and is an integral part of the division of property on marital dissolution. Generally speaking, property characterization depends on three factors: (1) the time of acquisition; (2) the operation of various presumptions, particularly those concerning the form of title; and (3) the determination whether the spouses have transmuted the property in question, thereby changing its character. In some cases, a fourth factor may be involved: whether the parties' actions short of formal transmutation have converted the property's character, as by commingling to the extent that tracing is impossible.
The case and statutory law on property characterization is vast and complex. However, the San Diego or greater California characterization appeal generally arises when either party is unhappy with the characterization the court has ascribed to a given piece of property. The first steps I undertake when contacted by appellants is determine whether an appeal has merit, evaluate the cost versus benefit, and finally determine if the order or judgment is appealable at all. For respondents who contact me I evaluate the opening brief and discuss potential theories to obtain an affirmance. If you have questions about a possible San Diego or greater California appeal, or seek someone to defend against an appeal, please contact me so that we can discuss your options.
Viewing the presentations, articles, other content, or contacting me/you through my web site does not establish an attorney client relationship. I will not file a notice of appeal nor calculate the time in which a notice of appeal must be filed by until I have received a signed retainer agreement. Warning, the time from which to file a notice of appeal is statutory. The time in which you have to appeal may pass between when you first contact me and when an attorney client relationship is formed upon when I receive a signed retainer agreement . Until a retainer agreement is signed and received by me, it is YOUR responsibility to insure your appeal is filed within the statutory period. The articles on this website are not legal advice and should not be used in lieu of an attorney. The accuracy of articles and information on this site cannot be relied upon.