Solano County Community Property Attorneys
What is community property?
California is a "community property state." What does that mean? Community property is a very simple concept. Essentially all property owned by either spouse falls into two categories: Community Property and Separate Property. There is a presumption in the California Family Code that everything acquired by either spouse during the marriage, including wages, is community property. This includes assets purchased with those wages. Assets and debts acquired before marriage or after separation are considered separate property. All assets that are determined to be part of the community estate will be divided equally upon divorce unless the parties agree otherwise.
Community property must be divided equally upon divorce or legal separation. This does not mean that each asset must be exactly split in half - it means that both spouses should end up with property of equivalent value. One common example is that one spouse may be awarded a community pension and the other spouse is awarded a community home of equivalent value or accompanied by what is called an equalization payment.
There are exceptions to the community property rule. For example, assets acquired by one party during the marriage by inheritance are considered the separate property of the inheriting party and are not divisible upon divorce. Another example would be those assets that are acquired by way of a gift during the marriage (with some exceptions). Finally, assets that can be traced to a separate property source (i.e. inheritance or a premarital savings account) are also separate property.
Assets that are determined to be one party's separate (non-marital) property are awarded to that spouse as their sole and separate property upon divorce or legal separation.
How do you prove that an asset is separate property?
Although a family court will presume an asset is community property you can prove otherwise with any evidence that tends to support a finding that the asset is your separate property. The community property presumption is not a title presumption and any credible and reliable evidence may be used to overcome it.
This evidence will be presented at trial, and may include documents and testimony tracing the asset's acquisition to a separate property source, evidencing that the asset was acquired prior to marriage, or presenting evidence that the asset was gifted to that spouse. Often bank statements, written correspondence between the spouses and third parties, witness testimony, and the testimony of the parties is introduced.
What if the date of separation is disputed?
The date of separation is defined as "'... a parting of the ways with no present intention of resuming marital relations.'" (In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448). What does this look like in a practical sense? A recent case, In re Marriage of Davis (2015) 61 Cal.4 th 846, held that at a minimum spouses must live in separate residences to establish their date of separation (i.e. "separate and apart"). However, this is subject to be modified by statute effective January 1, 2017.
After January 1st, the pre-Davis analysis will resume, requiring an evaluation of all factors relating to whether a spouse intended to separate and to determine the date of marital separation. This analysis has a subjective and objective component. This is a complex and fact-intensive analysis that should be discussed with an attorney. Spouses should be aware that living apart may not be enough by itself to establish your date of separation. It also doesn't necessarily mean that there is only one date of separation. Some spouses may live apart for a lengthy period of time before petitioning for divorce - and they may attempt to reconcile during that period of time.
Determining the date on which the parties separated (the "date of separation") must precede any discussion of dividing marital property. This is because this is the date on which the spouses stop acquiring an interest in the other spouse's property, wages, retirement accounts, and so on. Many spouses know the precise date on which they broke up and one party moved out of the home. However, for many couples it isn't that simple. Many couples spend months, even years, living separately while making some efforts to reconcile or keeping up the appearances of a relationship for the sake of their children or families.
Resolving the date on which the parties truly and finally separated can have significant consequences for both spouses. The length of the marriage is an important consideration in determining spousal support, dividing community accounts, dividing retirement assets, among other issues.
If you have questions about whether an asset is community property, or what date your separation was legally established, please contact us today to learn more.