community or separate property

How to Determine Whether an Asset is Separate or Community Property

Divorce is not always straightforward, especially when property division becomes involved. In California, property division is based on separate and community property, but determining which assets fall into each category can become complicated. This blog post will discuss the difference between separate and community property, what makes an asset separate or community, and provide examples of each. We also discuss when to seek professional help from a California property division lawyer to ensure fair asset allocation in a divorce settlement.


Defining Separate and Community Property


Separate property is any assets acquired prior to marriage or after legal separation. These assets are typically owned and controlled solely by one spouse and are not subject to division during divorce proceedings. Community property refers to assets acquired during the marriage, including income, property, and debt, which are considered owned equally by both spouses.


What is the Difference between Separate and Community Property in a Marriage?


The critical difference between separate and community property is the degree to which each spouse has legal ownership and control. Separate property remains under one spouse’s sole ownership and control, whereas both spouses have an equal right to control community property. In the event of a divorce, separate property assets belong exclusively to the spouse who owns them, while community property assets are divided equally between the divorcing spouses.


When Does an Asset Become Separate or Community Property in California?


The general rule is that property acquired during a marriage is community property, while property acquired before marriage or after legal separation is separate property. However, certain factors can complicate this standard. For example, property acquired with separate property funds during the marriage can become community property. Similarly, a business started before marriage can become community property if it grows and increases its value during the marriage.


Examples of Separate Property in a Marriage


Examples of separate property include assets owned before marriage, inheritances or gifts received during the marriage from an individual to one spouse, personal injury settlements awarded to one spouse, and property purchased with separate funds during the marriage.


Examples of Community Property in a Marriage


Examples of community property include homes, vehicles, debt, bank accounts, investments, businesses, and retirement benefits datable during marriage.


Gifting Between Spouses – Is it Separate or Community Property?


Gifts between spouses are considered separate property and are generally not subject to division during divorce proceedings. However, gifts are often complicated by the property’s source and each spouse’s intent.


When to Seek Professional Help for Determining Separate vs Community Property


Determining which assets are separate or community property can become challenging, especially if the couple owned a business, real estate, stocks and bonds, or other investment assets. Moreover, when a divorce becomes increasingly contentious, dividing property and assets fairly can be challenging. If you suspect that your spouse may be hiding or concealing assets or are concerned about property division, seeking a knowledgeable California property division lawyer for assistance is highly advisable.


At the Law Offices of Judy L. Burger, we specialize in family law, including property division. Our California property division lawyers have a proven track record of representing clients dealing with complex assets and valuations. We understand the stress and emotional turbulence often associated with divorce proceedings, and we are dedicated to helping our clients navigate the property division process. You can trust our knowledge and expertise to ensure a fair property division settlement. Contact us today to schedule a private appointment.