California is a community property divorce state. During a divorce case in Los Angeles County, the courts will divide property down the middle – a 50/50 split. This does not necessarily mean according to what is fair, as is the case in equitable distribution states. The California courts will not, however, touch separate property. They will only divide community, or shared, property between the couple. Understanding what is not community property under California’s laws can help you understand property division during your divorce case.
Separate vs. Community Property
Community and separate property are two distinct categories in a California divorce case. State law defines community property as any assets, money or debts acquired during a marriage or domestic partnership by one or both spouses. Separate property refers to assets acquired before the marriage. While a few exceptions to the rule exist, these definitions generally apply to all types of properties in a divorce case.
State law holds that when two people marry or register a domestic partnership, they become one legal community. Any property the couple then acquires (including debts) is community property. When the couple divorces or dissolves the domestic partnership, California law divides the community property in half. Since California is not a fault divorce state, one spouse’s fault for causing the divorce will not affect property division. The courts will divide property down the middle regardless of fault.
Examples of Separate Property
Community property can include all earnings, income, profits from investments, financial obligations, furniture, homes, vehicles, art, jewelry, pension plans, 401(k)s plans, life insurance, businesses, security deposits, cash, and other assets and debts one or both spouses acquired during the marriage or registered partnership. Assets that are not community property can include anything acquired by either spouse before the marriage or domestic partnership. There are many examples of separate property in California.
- Property you came into the marriage owning, which you did not commingle with your spouse’s property after marriage. This can include separate bank accounts, savings accounts, investments, properties and assets.
- Inheritances or gifts given to one spouse or domestic partner, either before or during the marriage or domestic partnership. Inheritances and gifts are always separate property, even if the other spouse uses the asset.
- Profits obtained from separate property. Profits from an investment, rent money or other income you earned from your separate property (such as real estate) also becomes a separate property, including property you purchase with funds from your separate property.
- Property you obtain or acquire during separation, even if you and your spouse are legally still married or in a domestic partnership. Separation can refer to the date you and your spouse stopped living under the same roof, as well as the date a judge signed off on a legal separation.
Once you commingle your assets, they become community property. If you wish to protect your separate property in case of divorce, therefore, you must keep it separate or sign a prenuptial agreement. Keeping assets separate may take maintaining separate bank accounts and not adding your spouse’s name to titles or deeds after marriage. You could also protect your assets by creating a prenuptial or postnuptial agreement with stipulations giving you ownership over the asset in question after a divorce. A prenuptial/postnuptial agreement will only stand up in court, however, if it is legally binding.
How to Determine Separate vs. Community Property
It can be difficult to assign ownership over an asset acquired before, during or after a marriage or domestic partnership during a divorce case. You may need to hire a Los Angeles divorce lawyer to look into the history of the item on your behalf. A lawyer can examine the source of the money used to acquire the item to determine whether it is separate or community property by law. A lawyer could also help you prove the status of an item during your divorce case in Los Angeles, if necessary.