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Dividing Business Assets in Divorce with the Pereira Approach

Posted by Michael Geller | Jan 01, 2022 | 0 Comments

In California family law, the distinction between community and separate property is often at the center of divorce cases. When it comes to business ownership, particularly one spouse's business or professional practice, the division of assets can become complicated. One critical case that set a precedent for how to handle the division of such assets is Pereira v. Pereira (1909) 156 Cal. 1. This case established the "Pereira formula," a widely used method for apportioning the increase in value of a spouse's separate business during a marriage between community and separate property interests.

Background of Pereira v. Pereira

The Pereira case involved a husband who had owned a separate business before his marriage. During the marriage, the business grew significantly in value due to his efforts, raising the question of how to allocate the appreciation between the husband's separate property (what he brought into the marriage) and the community property (acquired during the marriage). The California Supreme Court ultimately decided that when the increase in value of a separate business is primarily due to the personal efforts of the spouse during the marriage, a portion of the increased value should be considered community property.

The Pereira Formula

The Pereira formula was created to address this issue by providing a method to distinguish between the separate and community property interests in a business. It is particularly applied in cases where the growth of the business is attributed more to the personal labor, skill, and efforts of the spouse during the marriage than to the passive appreciation of the business.

Under the Pereira approach, the separate property spouse is credited with a reasonable rate of return on the initial value of the business, typically based on a conservative interest rate such as 6%. This return is considered separate property, while any excess growth beyond this calculated return is considered community property, as it is attributed to the spouse's active efforts during the marriage.

The Pereira formula can be broken down into two key steps:

  1. Determine a fair return on the separate property business: First, the court establishes the value of the business at the time of marriage. A reasonable rate of return is applied to that value for the duration of the marriage. The result is considered the separate property spouse's interest.

  2. Allocate the remaining value as community property: The remainder of the business's growth in value is attributed to the community property because it results from the labor, skills, and efforts of the spouse during the marriage.

Example of the Pereira Approach

For instance, if a spouse enters a marriage with a business valued at $100,000, and after 10 years of marriage, the business is worth $500,000, the court might apply a 6% annual return on the original $100,000. This would mean $60,000 (10 years x $6,000 per year) is credited as separate property. The remaining $340,000 increase would be allocated as community property since it is due to the spouse's labor during the marriage.

When Pereira Applies

The Pereira method is used in cases where the growth in the value of a business is mainly due to the active management and efforts of one spouse. It is particularly appropriate in cases where the business is small or service-based, and the success of the business depends heavily on the spouse's skill or labor. For example, a law practice, a medical practice, or a small family-owned business might be subject to this type of apportionment.

Conclusion

The Pereira method serves to protect the community property interest in a business that grows primarily due to the efforts of one spouse during the marriage. However, it is not the only method of apportionment; the Van Camp approach offers an alternative in cases where the business's growth is attributed more to external factors or passive appreciation. In any case, deciding whether to apply Pereira or Van Camp requires careful analysis by legal counsel to ensure the fair division of property in a divorce.

For spouses involved in complex asset division, understanding these legal principles is essential to protecting your financial interests. If you are facing a divorce involving a business, it's important to consult with a knowledgeable family law attorney who can guide you through this process.

About the Author

Michael Geller

Michael Geller is an attorney licensed by the State Bar of California.

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