What Is California Community Property in a Divorce?

By Heather Frances J.D.

California is a “community property” state, which means that property acquired during a marriage by California spouses is generally considered the property of both parties and can be divided equally by a California court during a divorce. Debts acquired during the marriage are also considered community property. However, there are exceptions that make certain types of property ineligible for division in a California divorce.

Quasi-community Property

It’s not uncommon for spouses to move into California while married and then get a divorce. Property the spouses acquired while they lived outside of California that would have been considered community property if the spouses lived in California at the time they acquired it is considered quasi-community property. California courts treat quasi-community property like community property, but it is taxed as the separate property of the spouse who acquired it rather than being taxed as community property.

Separate Property

Property owned prior to the marriage or acquired by gift or inheritance during the marriage is considered the separate property of the spouse who acquired it. Typically, separate property is controlled by the spouse who acquired it and is not subject to division upon divorce. Separate property can include items such as real estate, cash, investments or personal property. If a spouse acquires an asset as separate property and uses that asset to purchase another asset, the new purchase is considered separate property since the money used to buy it came from separate property.

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Commingling

Separate property can be commingled, or mixed, with community property such that it becomes community property. Thus, spouses who wish to keep their separate property from being divided as community property during a divorce must keep that property separate from community property. For example, if a spouse inherits money during the marriage but combines that money with community money to purchase a piece of real estate, a California divorce court could decide the real estate is entirely community property, and thus, divisible by the court.

Proof

In California, the spouse who asserts that a certain item of property is actually separate property has the burden to prove the item is separate. If he can trace the funding for that item back to its original source as separate property, he may succeed in having it treated as separate property. For example, if a vehicle was purchased during the marriage from money a spouse received after selling jewelry he inherited, the vehicle can be considered separate property -- as long as he can prove the source of funding to the court.

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References

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