How Property Is Divided in a California Divorce

Division of property in California divorces

While the division of property in a divorce can become very complicated, there are some general guiding rules. Here’s what you need to know about how property is divided in a California divorce.

Community property, or property acquired during the marriage, is usually divided equally among the spouses. Separate property, or property acquired before the marriage (as well as gifts and inheritances), will generally be given to the spouse that owns it. Some property, however, may be considered part community property and part separate property, which results in complicated divisions. Marital agreements, such as prenups or postnups, can alter the property rights of spouses, such as by granting one spouse all of a particular community property.

Community and quasi-community property

A key aspect of understanding the division of property in California divorces is the fact that California is a community property state. Put simply, this means that property acquired during the marriage is generally considered the property of both spouses. This includes all debt acquired during the marriage as well, even if only one spouse was accumulating the debt through their own personal actions.

A relatively easy method to determine whether or not a given property is community property is by looking at when the money used to purchase the property was earned. If a spouse uses money that was earned prior to the marriage to buy a car during the marriage, then that car would be considered their separate property because it was bought using money that is considered separate property. However, if the money used to purchase the car was earned during the marriage, then the car would be community property.

If two spouses lived in another state and then wanted to divorce in California, it is imperative that they understand the concept of quasi-community property. Quasi-community property is property acquired during the marriage in another state that, had it been acquired in California, would have been considered community property. For example, a car purchased in a different state during the marriage with earnings made during the marriage might not be considered community property in that state. But, if the spouses then moved to California and divorced in California, then that car would be treated as community property.

Separate property

The other category of property in regards to divorce in California is separate property. This is all property (including debt) acquired before the marriage or after the separation, as well as inheritances or gifts given to one spouse. In addition, any rents or profits that result from a spouse’s separate property will also be considered their separate property. In the event of a divorce, separate property will be granted to the spouse that owns the separate property.

The distinction between separate and community property underscores the importance of indicating the exact date of separation in a divorce case. Before the separation date, property acquired will be community property, while property acquired after this date is separate property.

Commingling and pensions

While the concepts of community and separate property may seem relatively simple, the status of marital property can become extremely complicated. Indeed, sometimes, properties may be considered both separate and community property. This is referred to as “commingling”.

For example, a spouse may use their separate money to put money down on the purchase of a car prior to the date of marriage, but then both spouses may pay the car payments together during the marriage. As such, while the initial payment made the car separate property, both spouses’ payments during the marriage made the car community property. So, the car is both separate and community property.

Another complicated situation involving commingling is pensions. If a spouse has a pension from a job held before the marriage, then contributions to the pension before or after the marriage is separate property while contributions made during the marriage by the spouses is community property. The division of the pension in a situation such as this can become extremely complicated, and it is highly recommended that anyone in a scenario such as this contact an expert property division attorney.

Marital agreements

Marital agreements, such as prenups or postnups, can redefine whether or not certain property shall be considered separate or community property. For example, a postnuptial agreement may recategorize a particular debt from community property to separate property if both spouses believe that the debt should only be held by one of them post-divorce. As such, marital agreements override laws and standards regarding the property division in California divorces, as affirmed in California Family Code Section 1500.

FAQs about how property is divided in a California divorce

What is community property?

Community property, in general, is property acquired during the marriage, including debts.

What is separate property?

Separate property, in general, is property acquired before a marriage or after the date of separation, including debts.

What is quasi-community property?

Quasi-community property is property acquired during a marriage in another state that would qualify as community property had it been acquired in California. In a California divorce, this property will be treated as community property.

I bought a house before my marriage, but my spouse helped pay the mortgage. Is it still my separate property?

This property has been commingled, which means that it is both community and separate property. Situations like this complicate the division of property in divorces.

How are pensions divided?

Pension division in divorce can be extremely complicated and depends on the specific circumstances. Contact a lawyer if you have not done so already.

Can marital agreements affect whether or not something is separate or community property?

Yes. A marital agreement, such as a prenup, can change property from community to separate property, separate to community property, or separate property of one spouse to separate property of the other spouse.

Do I need a lawyer?

Property division in divorces can be extremely complicated and time-consuming. In order to ensure that a spouse receives that to which they are entitled, it is important that they consult an attorney. Even if a spouse is not using an attorney for the entire divorce process, it is still recommended that they consult an attorney purely for property division. If you are in need of an attorney, contact Her Lawyer to be put in touch with an expert in this field of law.

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