Property Division Appeal
To understand how a family law property division appeal arises a general overview is helpful. In San Diego and greater California, under Family Code section 2010, “[i]n a proceeding for dissolution of marriage . . ., the court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning the following: [¶] ... [¶] (e) The settlement of the property rights of the parties.” Under Family Code section 2550 the San Diego and California trial courts must divide the community estate of the parties equally, except under the written agreement of the parties or on oral stipulation of the parties in open court (the parties are free to divide their community estate in any fashion they wish—whether equally or unequally).
In satisfying the equal division mandate, the California trial court must distribute both the assets and the obligations of the community so that the residual assets awarded to each party after the deduction of the obligations are equal. California is unique in this approach to community property because it strictly limits trial court discretion. Unlike virtually every other state, California has restricted judicial authority by requiring trial courts to divide the community estate equally between the parties, except for limited circumstances. This task constitutes a nondelegable judicial function which must be based upon substantial evidence.
The actual division of community property is affected by the characterization of specific assets, so
the issue of characterization reposes in the San Diego or greater California family court. The family court's subject matter jurisdiction includes the authority to divide, characterize, and place a value on property. The family court therefore has the power and authority to order a sale of the community property when, in the exercise of sound judicial discretion, the court concludes it should do so in order to accomplish an equal division of the community property.
The San Diego or California property division appeal arises when either party is unhappy with the court’s judgment dividing the parties’ property. Usually this manifests itself when in one person believes the division was either unequal or did not follow the parties’ agreement. The court may also not have followed the law. The first step I undertake as an appellate attorney is to ascertain whether an appeal is merited. Whether one is merited includes the likelihood of reversal, the potential recovery in relation to cost, and whether the order or judgment is appealable. Feel free to contact me if you would someone to determine if a San Diego or greater California property division appeal is warranted.
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.