California is a community property state whereby it is presumed that each spouse has an undivided one-half interest in any property acquired during the marriage while domiciled in California (California Family Code § 760). The definition of community property generally pertains to everything acquired during the marriage including assets, income, stock options, retirement interests as well as all debts incurred during the marriage.
If the divorcing spouses cannot agree to a negotiated division of the community property, the court will order the division.
The experienced community property laws attorneys of the law office of Doyle Quane Family Law Group can assist with all aspects of the proper valuation of assets and the best options for an equitable division.
Frequently Asked Questions
These questions and answers are not intended to be legal advice to any person. This information is general in nature and an answer given may or may not be applicable to a particular situation. Family law issues are extremely complex and competent legal advice should be sought from a licensed community property laws attorney.
1. What is separate property?
Separate property is anything owned prior to marriage and:
- Inheritances and gifts to one spouse during the marriage
- Rents, profits, or other money earned from your separate property
- Property purchased with separate property
2. Who is responsible for paying for the family home after I move out of the house?
The party who stays in the home usually pays for the home. There are some very complicated issues involving balancing the expenses of the home against the fair market rental value of the home between separation and judgment. Competent legal advice should be sought from a licensed attorney on this issue.
3. What items can I take with me when I move out of the home?
Anything that is your own separate property can be taken without any cause for concern. You cannot take anything that is your spouse’s separate property. In most cases, anything that is community property can also be taken; however, any community property items taken will require reimbursement of 50% of the value of that item.
4. What items are considered community property?
California is a community property state. All property acquired during marriage is community property. This includes income, property purchased or received as a gift to the parties jointly. Community property does not include rents, issue or profits from any separate property or gifts or inheritances given to one party individually.
5. What if I paid a down payment for the family home with money I had before marriage?
Generally speaking, this will create what is called a tracing issue. It will be necessary to trace where all the funds used in purchasing the home came from to determine their character. In this case, the down payment would be considered separate property. In California under Family Code § 2640, you would be entitled to reimbursement for your separate property down payment.
6. Who gets exclusive possession and use of the family residence during divorce proceedings?
In most cases, unless there is domestic violence or the threat of violence, neither party gets exclusive possession and use of the family residence. In some instances, it simply is not financially feasible to split the households and begin paying for two residences. And often, in child custody cases, it may not be in either party’s best interests to allow the other party exclusive use of the home that the children reside in.
7. My spouse ran up credit card debt right before our separation. Am I responsible for half of that debt?
Debts incurred during marriage are community debts. However, if it can be shown that those debts were not for the benefit of the community or were incurred in contemplation of divorce, then it is possible to the debts assigned to your spouse during the dissolution.
8. If I have been paying the mortgage payment on the family residence from my post separation earnings while my spouse has been living in the residence, will I receive a reimbursement?
Yes, you would generally be entitled to reimbursement or credit for making those payments. The court will perform a balancing through what are called Epstein credits and Watts charges to both give you credit for your payments and charge your spouse for exclusive use of the residence to deal with any inequity created in this scenario.
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