The state of California is a community property divorce state. In other words, if you are getting a divorce in Los Angeles County, the family law court will typically divide the property equally, a 50/50 split down the middle. However, the judge will only divide community property, which is generally described as property that was shared between the spouses.
This means any separate property will not be divided, rather retained by the spouse who owns it.
As you can see, if you are planning a California divorce, you will need to have a clear understanding on difference between community and separate property laws.
When a couple decides to end their marriage in divorce, the division of property is normally one of the major issues that need to be resolved.
This issue is not always easy to settle as the relevant California laws can be confusing.
Before you begin the divorce process, you need to understand whether your property will be considered “community” or “separate” property by the California family law court.
For more information, our Los Angeles divorce and family law lawyers are providing an overview below.
Property Acquired During and Before Marriage
In a California divorce, community and separate property are distinct categories:
- community property generally includes any assets or debts acquired during a marriage, and
- separate property includes assets acquired before the marriage.
Of course, there are some exceptions to this rule, but this principle normally applies to all types of property in a divorce.
Under California law, when a couple gets married they are now one legal partnership. If they obtain property or debts during the marriage, it's part of the “community property.”
Later, if the couple decides to get a divorce, the community property will be divided equally between the spouses. In other words, all community property will be split in half.
No fault divorce state
California is “no fault” divorce state, which means a spouse's fault for causing a divorce will not impact how property is divided. In other words, a California family law court will normally divide property in half regardless of who was at fault.
When you get a divorce, all the property owned by you and your spouse will normally be placed in either a community or separate property category. This process determines how the property is divided once the divorce is finalized.
Community Property – Family Code 760
As stated above, California is a community property state, which means when you get married you become one legal community.
Thus, any property or debt that is acquired by one spouse during the marriage belongs to the one community, rather than the just the one spouse.
Under California Family Code 760, community property is defined as:
- “all property, real or personal, wherever acquired by a married person during the marriage while domiciled in the state is community property.”
When a divorce occurs, community property is normally divided equally 50/50.
It should be noted there are other California statutes that determine whether real property or personal property is considered part of community, depending on a variety of factors.
Examples of community property
Some common examples of California community property include the following:
- pension plan,
- 401(k) plan,
- life insurance,
- financial obligations,
It also includes any other assets or debts both spouses acquired while they were married.
Separate Property – Family Code 770
Separate property is what a spouse owned before the marriage, which simply means it's not part of the one legal community rule.
Thus, any property a spouse acquired before they got married will belong to that spouse in a divorce.
Under California Family Code 770, separate property is defined as:
- “separate property of a married person includes the following: (1) All property owned by the person before marriage; (2) All property acquired by a spouse after marriage by gift, bequest, devise, or descent.”
As you can see from this definition, separate property includes gifts and inheritance given to one spouse, and all property that was bought after legal separation.
Remember, separate property is anything you owned BEFORE marriage. Common examples include the following:
- bank or savings account in your name,
- properties or assets in your name,
- profits from investment or other income of separate property,
It's crucial to note that if you want to protect your separate property in case you decide later to get a divorce, you have to keep it separated from your spouse or you can create and sign a prenuptial agreement.
The moment you start to “commingle” your assets, they will become part of the one legal community.
Keeping your assets separate is not always easy. You will have to keep separate bank accounts and make sure to not add your spouse to any property titles after you get married.
Separate property is what you owned coming into the marriage which you didn't commingle with your spouse's property after marriage. The most common example are separate bank and savings accounts, investments, properties, and other assets.
Prenuptial and postnuptial agreement
You can protect your assets by creating and signing a prenuptial or postnuptial agreement that stipulates you will have ownership rights of certain assets in case of divorce, but the agreement must be legally binding and approved by the court.
Mixing Separate and Community Property – Commingling
You might get the impression from the above discussion that dividing property in a divorce is always an easy process.
However, this is rarely the case as the California divorce process frequently involves a debate whether community or separate property was “comingled” during the marriage.
For example, let's say one spouse owned a home before getting married, but decided to sell the home so they could use that money to make a down payment on a new home with their new spouse.
In this common scenario, the down payment would be separate property. The mortgage payments are made with money earned by both spouses while they are married. Now, the equity on the home is now a commingling of separate and community property.
Remember, once you commingle your assets, they will become community property.
Divorce Lawyers for California Property Division
Clearly, it can often become difficult to determine property ownership when a couple decides to seek a divorce.
In many cases, you will need to retain an experienced Los Angeles divorce attorney to review the details in order to determine best strategy on division of property.
We will sometimes need to thoroughly review specific history details in order to determine whether property in a divorce in separate or community under California law.
Furman & Zavatsky are a Los Angeles family law and divorce firm representing people in all surrounding cites and counties.
This includes Orange County, Manhattan Beach, Ventura County, Simi Valley, Torrance, Santa Clarita, Valencia, Hollywood, Riverside, and San Bernardino.
Our firm is located at 15821 Ventura Blvd #690 Encino, CA 91436.
Call our firm for a free case consultation at (818) 528-3471, our you can contact us online.