Community Versus Separate Property

You may already know that California is a community property state. This means that marriage or registration of a domestic partnership places two people into a single "community." Property and debt acquired during the marriage or partnership becomes community property or community debt.

In a California divorce, the court is required to divide the community estate in equal shares between the spouses. On the other hand, once the court determines that an asset is separate, it loses the power to divide it. Things become complicated when separate property is mixed with community property, and knowledgeable counsel is needed to help characterize the assets as separate or community.

What Is Community Property?

Community property is the earnings of each spouse or partner during the marriage/partnership. Generally, the courts look at the source of the money that was used to make a purchase. If you used savings acquired over the course of a marriage to buy a second home or vacation property, this would be community property. Also, if an asset is purchased during the marriage, it is likely presumed to be community property.

Similarly, debts incurred during a marriage/partnership are also community obligations. This is true even if you had no idea that your spouse or partner took out a credit card and charged large sums.

Separate Property and the Importance of the Separation Date

Separate property is what you owned prior to the marriage. During your marriage or partnership, inheritances and gifts made to one spouse are separate as well. Rents and profits earned on separate property generally keep this characterization. Income earned and debts incurred after the date of separation are also characterized separate.

Determining the date of separation can become a major issue. This involves more than solely the intent to end a relationship. At the Law Offices of David M. Lederman, we have presented on this specific issue. We have closely followed developments in California case law and legislation and know how to make the best possible argument in your case.

Some property may start out as separate but become commingled and take on a mixed character. Complex property division often includes tracing to determine how much of the asset is separate, including appreciation. This requires the assistance of an experienced attorney.

Discuss your problem with one of our experienced lawyers. Schedule an appointment at our Antioch or Walnut Creek office online, or call 866-463-2149.