Caring Counselors | Aggressive Litigators Free Initial Consultation

Property Division Frequently Asked Questions

What is Marital vs. Separate Property in California?

Only marital (or referred to as "community") property is subject to division in a California divorce, so it is essential to determine what property is considered separate and what is considered marital before attempting to divide property.

Marital property includes all assets acquired by a couple from the date of their wedding to the marital cut-off, or separation date. There are limited exceptions to this rule, such as assets that were gifted to, or inherited by, one party during the marriage. Such property is considered "separate," but may be converted into marital property by commingling, such as when a wife who inherits money from a relative deposits the funds into a joint bank account and the monies are spent jointly by the couple.  

Property belonging to one party before marriage is considered separate property, as is property acquired or earned after the couple's date of separation. However, if an asset was earned during the marriage, but paid after the date of separation, such as a performance bonus at work, it is considered marital and thus subject to division as community property. There are many nuances to what constitutes marital versus separate property and oftentimes it is not a clear cut issue.  Obtaining legal advice with respect to your particular situation is vital. 

The date of separation does not necessarily mean the date one party moved out of the marital home, but when one or both spouses decide the marriage is over, as determined by their words and actions. If the date is unclear, courts in San Diego and elsewhere in California tend to err on the side of a later separation date, so that more property will be considered community property.

Couples can agree, either in a prenuptial or postnuptial agreement, or in a divorce settlement agreement, to consider certain property either marital or separate, even if a California court would decide otherwise.

What Does "Community Property" Mean?

California is one of a minority of "community property" states. In most states, property is divided in a divorce according to principles of "equitable distribution." Community property states divide all marital property equally between the parties, without regard to other issues. (Equitable distribution, on the other hand, strives to arrive at a division that is fair under all the circumstances, but not necessarily equal.)

In a community property state, each party is considered to own one-half of all marital property and to be responsible for one-half of all marital debt. Even if property is clearly traceable to one party, if it is acquired during the marriage (with very limited exceptions) it is community property. For example, if you open a savings account after you are married and deposit your weekly paycheck into that account during your marriage, those funds are still community property even though they were earned by you and put into an account in your sole name.

"Quasi-community property" is property that was acquired by either or both spouses (or domestic partners) while living in another state that, if it had been acquired while living in California, would be considered community property.  For example, if you and your spouse lived in Florida for a year during your marriage and bought furniture there, it would be quasi-community property. Quasi-community property is treated by courts as community property in a California divorce.

Most divorces in San Diego County and elsewhere in California are resolved by settlement, not by trial. This means, as with many other aspects of divorce, that couples have the freedom to agree on property division between themselves rather than allow a court to divide their assets. Couples may reach agreement as to property division during their divorce, or may have done so earlier in a prenuptial or postnuptial agreement.

San Diego Bar AssociationSection of Family LawCalifornia State Bar Family Law American Bar Association Avvo Clients' Choice 2014