San Bernardino Complex Property Division Attorneys

Posted By admin, On July 18, 2020

In general, with respect to divorce proceedings in the Golden State, a popular belief could be that all of a couple’s property is divided fifty-fifty.  Alas, family law in the state of California is not so simple. Who winds up with what during the dissolution of a marriage or in a legal separation could be based on a multitude of details, such as:

  • At what point in time the property was acquired,
  • How the title is written,
  • What monetary source was used to acquire it,
  • Whether the spouses ever relocated in and out of state, or
  • Whether any written contracts exist with regard to the property.

If you’re thinking about dissolving your marriage, you might have questions regarding your property rights. To get clarity, should consult with a well informed San Bernardino property division attorney today.

The Presumption About Community Property in Marriage

California family legislation presumes that all of the property accumulated during the marriage by either spouse – while residing in California – qualifies as community property. Real estate and personal property, and, in a few cases, trusts, could all be included in this list. The fact that the real estate is situated outside of California, or other transportable property is moved outside the state, holds little relevance.  Along as the spouses retain a residence in the state of California, the rules apply.

Under certain circumstances, any pecuniary gains from a personal injury lawsuit might also be classified as community property by California family courts. A judge could assign liabilities, including credit card debt, as community property, also. Regardless of this fact, even if the ownership of certain property was acquired jointly during the marriage, a deed or some other legal document that signifies ownership may show that the property is separate.

When this happens, the community property presumption is rebuttable.  What this means is that an attempt can be made in court to argue the categorization of a particular valuable, such as pension funds, as community property. All that said, acceptable evidence has to be brought forth to convince a judge that an exception could be applicable: Case law in California necessitates a minimum of a preponderance of evidence. In keeping with this, different requirements (connected with the level of proof – or as to the conditions of validity of property transfer) can be applied to different details in every case, and the complexity can quickly balloon because of the fiduciary nature of the relationship that exists between married couples or domestic partners.

The California community property presumption is important for a number of reasons: for example, community property must not be sold or donated without the awareness or the blessing of the other spouse. From the moment the divorce proceedings commence, restrictions are automatically activated to severely limit any form of property transactions, such as sale, giving, or borrowing against marital property, generally speaking.

Division of Property: The Essentials

The court’s verdict on what can be called marital community property is the determining factor in the division of property during divorce, legal separation, or nullity proceedings. As a general rule, the judge will divvy up community property between the spouses equitably.

If they wish to do so, the domestic partners or spouses might be able to avoid this arbitrary property allocation if they either

  • Show a valid written agreement, like a prenuptial contract; or
  • submit (to) a divergent division in open court.

Holding On to Separate Property

For the most part, a married person can control their own separate property independently of their spouse. There are some exceptions to this rule: for example, if one spouse petitions for an annulment, a divorce, or a legal separation, then temporary restrictions on the sale of any separately owned real estate go into effect.

Separate property can encompass:

  • All of the property the person had in their own name before the marriage, including any profit from such property;
  • Any property the person might have inherited, or gotten individually as a gift after getting married – again, this encompasses any profit from such property;
  • Any wealth or earnings that was acquired after the legal separation of the spouses (or domestic partners);
  • Any income or revenue that was earned while living apart and separately. This could include any income earned by the minor children who live with the spouse.

Transmutation: From Separate Property to Community Property

In the California Family Code § 850, there is a provision that allows spouses to transform their own holdings from separate property to community property, or joint holdings from community property to separate property  –  for example by recording a title change.  This act is known as a transmutation and it is contingent upon the two of you consenting. 

In further transmutations, the separate property of one spouse might be transmuted into separate property for the other.   As an example, if a wife opts to give her husband a sailboat that she bought as a single woman, then the separate property of the wife will become the separate property of the husband. 

In situations where property was owned by one of the spouses before the marriage, but the couple opts to change title after the marriage to include both spouses as joint owners, the courts will then classify such property as community property.

If a transmutation is to be effective, it needs to be in writing. On top of that, if the transmutation affects the rights of any third parties, such as creditors, the third parties must be appropriately notified of any ownership change. 

In the realm of property division, small items, like a gift of small inexpensive jewelry between spouses, are generally not required to be validated in a three-page contract, so some exceptions do exist.