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Riverside Complex Property Division Attorneys

July 21, 2020

For the most part, with respect to dissolving your marriage in the state of California, a popular belief about divorce is that all of a couple’s property is arbitrarily divided down the middle.  While it would be nice if it was that simple, family law in California is not simple at all. Which spouse walks away with what assets and liabilities during the dissolution of a marriage or in a legal separation could be decided on the basis of a multitude of details, such as:

  • At what point in over the years the property was acquired,
  • The way the title is written,
  • What pecuniary source was used to acquire it,
  • Whether either one or both spouses ever relocated in and out of state, or
  • Whether any written agreements exist with regard to the property.

If you have the idea of dissolving your marriage in your mind, you might have some questions with regards to your property rights. To get a clearer idea of how this could work better, you should consult with a seasoned Riverside property division attorney today.

The General Presumption About Community Property in Marriage

The California family code presumes that all of the property that was procured during the marriage by either spouse – while maintaining residence in California – would be categorized in a divorce as community property. Personal property and real estate, and, in some cases, trusts, could all be included in this category. The fact that the real estate is located outside of California state, or that other transportable property is relocated outside the state, is negligible.  Once the spouses keep a residence inside the state of California, the rules are applicable.

Under certain conditions, any financial gains from a personal injury suit may also be categorized as community property by the California family court. On top of that, a judge might assign liabilities, such as credit card debt, as community property. Regardless of this, even if the ownership of specific pieces of property was acquired jointly while you were married, a deed or some other legal instrument that signifies ownership may show that the property is separate.

When this occurs, it renders the community property presumption rebuttable.  What this means to you is that an attempt can be made in court to argue about how a particular valuable item is categorized. Pension funds, for example, can be categorized as community property in a rebuttal. That said, convincing evidence has to be brought before the court to convince a judge that an exception could be applied: Case law in California makes it necessary that there be a minimum of a preponderance of evidence.  Because of this, different obligations(connected with the level of proof – or as to the conditions of validity of property transfer) can be imposed on different details in every case, and the complexity can rapidly balloon because of the fiduciary nature of the relationship that exists between married couples or domestic partners.

The community property presumption connected to divorce in California is important for a number of reasons: for instance, community property must not be sold or donated outside of the knowledge or the blessing of the other spouse or any other party with an interest in the property. From the time the divorce proceedings are underway, the restrictions are automatically activated to tightly limit any form of property transactions, such as selling, giving, or borrowing against marital property, in general.

The Essentials of Division of Property

The court’s verdict of what can be referred to as marital community property is the determining factor in the division of property during a divorce, a legal separation, or a nullity proceeding. As a rule, the judge will share out community property between the spouses in equal portions.

If they are  interested in doing so, the domestic partners or spouses might be able to evade this arbitrary property allocation if they either

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

Keeping Your Separate Property in Your Possession

In large part, a married individual can keep their own separate property independently of their spouse. There are a few exceptions to this rule: for instance, if one of you petitions for an annulment, a divorce, or a legal separation, then some temporary restrictions on the sale of any separately owned real estate go into effect.

These items can be separate property:

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

Transmutation: Separate Property into Community Property

Embedded inside the California Family Code § 850, there is a clause that allows spouses to transmute their own stuff from separate property to community property.  In the other direction,  joint holdings can be transmuted from community property to separate property  –  for example by recording a title change.  This act is known as a transmutation and it can only occur when the two of you consent to it. 

In one more type of transmutation, the separate property of one spouse could be transmuted into separate property for the other.   As an example, if a wife wants to transfer to her husband a sailboat that she bought before she married him, the separate property of the wife will now become the separate property of the husband. 

At times when property was held by one of the spouses before the marriage, but the couple made the choice to change title after they got married to include both spouses as joint owners, the courts will then categorize such property as community property.

If a transmutation is to be enforceable, it needs to be in writing. In addition to that, if the transmutation impacts the property rights of any third parties, such as creditors, then the third parties must be appropriately notified of any ownership change. 

In the realm of property division, small things, such as a gift of smal,l inexpensive jewelry between spouses, are not generally required to be documented in a three-page contract, so there are some exceptions.



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