When considering the division of assets and debts in a California divorce, it’s wise to understand what the law considers to be community and separate property. There are several reasons for this:
- Only community property needs to be divided.
- It’s good to confirm who owns any separate property.
- When a piece of property is a mixture of community and separate property, the law can help clarify.
- Some of the required divorce court forms distinguish between the two.
First, here are some basic definitions.
Community and Separate Property Definitions
“Property” in this context refers to all types of assets and debts, from houses to coin collections to loans from Uncle Joe.
“Separate property” is property that was acquired:
- before marriage;
- after separation;
- by gift or inheritance; or
- (rarely) after a judgment of legal separation of the spouses.
“Community property” is real or personal property wherever located that was acquired by a married person during marriage while living in California. The period of marriage for this purpose is the date of marriage until the date of separation – not until the date of divorce.
“Quasi-community property” doesn’t arise in most marriages. It is real or personal property wherever located that was acquired by a married person during marriage while living outside of California. It is treated in the law essentially the same as community property.
It is not uncommon for some property to be a mixture of community and separate property. An example is a retirement account that received contributions both before and during marriage. Another example is a house purchased with a down payment of one spouse’s separate money on which mortgage payments were made during the marriage.
“Characterization” is the legal word for the process of classifying property as separate, community, quasi-community, or mixed. The four basic actions undertaken in a divorce to divide up the property (assets and debts) are listing, characterizing, valuing and dividing.
For a divorce to be granted in which you work out your own settlement, you need to identify all the community property for the court and let the court know how you are dividing it up. It’s a good idea at the same time to confirm in writing the separate property of each spouse. All of this will then become part of the divorce judgment.