In California there are three steps in dividing property in a divorce action:
- Characterization determines if the property
is community property, separate property, or quasi-marital property.
- Valuation assigns a value to the property
either by appraisal or agreement.
- Division determines how the property is
divided between the parties.
Any property that is acquired before marriage is
a spouse's separate property. For the property to remain separate, the spouse
must keep it apart from marital or community property; that is, s/he would keep
it entirely in his/her name. Once the separate property has been commingled
(mixed) with marital or community property, it becomes part of the marital
property. Any property or assets acquired during the marriage are presumed to be
community property.
"Separation" requires more than a rift in the spouses' relationship. The date of
"separation" occurs only when the parties have come to a parting of the ways
with no present intent to resume their marriage and their conduct evidences a
complete and final break in the marital relationship.
An individual's earnings after separation, whether by court order or mutual
agreement, are considered separate property, not community property.
Additionally, separate property can include any value added to this property
including rent, interest, and profits. Any personal gifts or inheritances that
were gained during the marriage are usually considered separate property as
well.
|
Community Property |
Separate Property |
| Money either spouse earns
during marriage |
Property owned by one
spouse before marriage |
| Things bought with money
either spouse earns during marriage |
Property given to just one
spouse |
| Separate property that has
become so mixed with community property that it can't be identified |
Property inherited by just
one spouse |
These rules apply no matter whose name is on the title document to a particular
piece of property. For example, a married woman in a community property state
may own a car in only her name - but legally, her husband may own a
half-interest. Married couples don't have to accept the rules about what is
community property and what isn't. They can sign a written agreement that makes
some or all community property the separate property of one spouse, or vice
versa. If you have any questions about separate property rights in the state of
California, please contact our attorneys today. Please contact us online or call
us at 1-800-221-9847.
Related Information
Divorce
Pre-marital Agreements (Pre-nuptial)
Post-marital Agreements (Post-nuptial)
Property Settlements
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