Property Division

Regardless of the size of a couple’s estate common property rules apply. Entire books a have been written on this subject as it is the most technical familylaw attorney’s face. Having represented more than one thousand business owners we appreciate and can provide the due diligence and expertise complex business valuations require.Community Property:Community property is generally defined under current law as “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in [California]…,” except as otherwise provided by statute. This definition supersedes both a prior statutory definition and the first paragraph of the prior statutory presumption regarding community property. It is not an exclusive statement that describes all property that is classified as community property, but rather is a general statement of the basic rule that all property acquired during marriage is community property unless it comes within a specified exception, such as that for separate property.

Separate Property:

In general, all property owned by a spouse that is not classifiable as community property is considered to be that spouse’s separate property, except in the circumstances in which it is appropriate to classify particular property as “quasi-community property”. More specifically, separate property of a married person includes the following property, as provided by statute:

1. All property owned by the person before marriage;

2. All property acquired by the person after marriage by gift, bequest, devise, or descent; and

3. The rents, issues, and profits of the foregoing property.

Other statutory provisions also classify particular property as separate property. For example, the earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse. Similarly, after entry of a judgment of legal separation, the earnings and accumulations of each party are the separate property of the acquiring party. A special statutory rule also sets forth the circumstances under which personal injury damages can be considered separate property. In addition, statutes specify the manner by which interests in community property or one spouse’s separate property can be changed, or “transmuted,” into the separate property of the other spouse. In some cases, the form of title to property will give rise to a common law presumption that the parties each hold a separate property interest in it, particularly with regard to property held in joint tenancy or tenancy in common, whether the cotenancy is between the spouses themselves, or between a spouse and a third party. Also, a special separate property presumption applies to property acquired by a married woman before January 1, 1975, pursuant to a written instrument.