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Frequently Asked Questions Regarding Property in Divorce

In a divorce case in California, distribution of property can be a very large and often complicated issue.  Deciding who gets what and why depends on what the legal definition of the property is.

Here are some frequently asked questions regarding property and what happens to it in a divorce.

What is property for divorce purposes?

Property is anything of value that can be bought and sold like a car, a house, clothing, furniture, etc.  It can also be money (as in bank accounts, pay checks, and cash), stocks, pensions, businesses and even patents.

What is community property?

Community property is property that spouses acquired together during their marriage.  California is a “community property state” which means both spouses have equal ownership of the property.  During a divorce, community property is divided as equally as possible.

Is all property acquired during marriage community property?

Not necessarily.  If the spouses have a pre or post-nuptial agreement or have given each other gifts during the marriage, those items may be considered a spouse’s separate property.

What is separate property?

Separate property is anything you owned prior to your marriage.  Separate property is also property you buy with separate property.  Profits, rents, and/or other money (such as interest on a bank account) are also separate property.  After marriage, inheritances and gifts from one spouse to the other is also separate property. 

Well, that sounds simple enough, what’s the big deal?

The basic definitions of separate and community property are very simple.  It’s when separate and community properties are combined (called co-mingling), and now a divorce is trying to divide them.  Some examples are living in the separate property house, but community property (such as the spouses’ paychecks) is making mortgage payments and maintenance; or the separate property of one spouse is used to maintain the community.  Then things can get very tricky, and a family law specialist and the court system should be used to sort them out!

Are there any other forms of property for divorce purposes?

Yes, one other known as quasi-community property. Quasi-community property is property acquired by either one or both spouses when living in another state that, but if acquired while living in California, it would have been considered community property. For example, if you or your spouse were living outside of California during your marriage, and you had any earnings or bought any type of property that in California would be community property, that property is called quasi-community property. And, in a divorce or legal separation in California, it will be treated as community property.

What’s the bottom line?

Property issues can be very complex and experts and the court system may be needed to sort them out.

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