COMMUNITY PROPERTY AND SEPARATE PROPERTY


Below are some general definitions and principles that may help you understand your property rights in your family law proceeding at a very basic level. There are many exceptions and many refinements to the Family Code provisions concerning property which have been developed by the appellate courts. It is beyond the court's ability to instruct persons representing themselves on how to prepare and present property issues. That is also beyond the court's purpose in making these web pages available.

If you bear that in mind, you may educate yourself about the Family Code provisions relating to property by following this link to the Table of Contents of the Family Code. When there you will probably wish to view the links to Division Four, Division Six (Part 1, Chapters 4, 5, 6, and 9), and Division Seven. (No guarantee is made that there are no other sections of the Code that may be applicable to the property issues in your case.)

It is difficult for a person who is untrained in Family Law to interpret the statutory provisions applicable to his or her situation and the refinement of those provisions by cases that have been decided by the courts. Therefore it is always a good idea to go over your situation with a lawyer who knows Family Law. (If you do not know where to go to get a lawyer, see the webpage about Lawyer Referral Services.)

Community property is property you and your spouse earn or accumulate during the marriage and before separation. A spouse has a community property interest in the earnings of the other spouse and in assets bought with that income. It does not matter which spouse did the work that earned the money. An example is a retirement plan in which both spouses may have a community property interest even though it was earned all by one spouse. Community property is divided equally on dissolution of marriage (divorce).

Separate property is property that you or your spouse receive by gift or inheritance, that either of you owned before marriage or that was earned after separation. Separate property is not shared with the other spouse on dissolution of the marriage. Some property may be part separate and part community. For example, one of you may buy a car before marriage, but are still making payments on it after marriage.

Community debts are debts that are incurred during marriage and before separation. Both spouses are equally liable for community debts, regardless of which spouse incurred them.

Separation. You and your spouse may not be considered separated even though you no longer live together. The law defines separation as a complete and final break in the marriage relationship with no intention of getting back together. If one of you moves out, but nobody takes steps to legally end the marriage, the court might later decide that you were not separated. If that happens, your earnings for that period may still be community property, and debts that you or your spouse run up may still be community debts.

Dividing community property. Community property must be divided between you and your spouse so that each of you will receive one half of the overall value. There are taxes and other things to consider when deciding what division of property to propose or accept, so obtaining a lawyer's and sometimes a tax accountant's advice is always a good idea.


Full Disclosure

A very important development in Family Law in recent years has been the requirement that after the filing of a Petition to dissolve their marriage each spouse must prepare and serve preliminary and final disclosure declarations on the other person. There are time limits within which these declarations must be served. The preliminary declarations must identify all property owned by either or both spouses regardless of whether it is community or separate property. The final declarations are more detailed and shall include all of the following information:

   (1) All material facts and information regarding the characterization of all assets and liabilities.

   (2) All material facts and information regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest.

   (3) All material facts and information regarding the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability.

   (4) All material facts and information regarding the earnings, accumulations, and expenses of each party that have been set forth in the income and expense declaration. (Family Code section 2105.)

Serving the final disclosure declaration on time is critical. With only certain exceptions, the court cannot approve a marital settlement agreement or allow a case to go to a contested trial unless each party has filed a declaration that the required disclosure declarations have been served on the other side. If the other party has served you with a timely final disclosure declaration and you have not served yours at least 45 days before the first date the case is set for trial, he or she may obtain an order preventing you from presenting evidence about your property claims at trial. (Family Code section 2107.)

If you lie on your disclosure declarations, it provides grounds for setting aside in the future any judgment or marital settlement agreement that has been obtained.

You will want to read all of the Family Code provisions relating to disclosure to educate yourself about your rights and responsibilities. (Family Code sections 2100-2113.)