Community Property Law

California is a community property state. Being such, all property that the husband and wife acquire together while they are married and before any divorce or permanent separation, is presumed to be community property. This is the general presumption. Absent a showing otherwise, the party arguing that a particular item of property is separate property has the burden of proof to establish such.

Divorce

The husband and wife generally have equal 50/50 rights to all community property baring a law or legal presumption declaring otherwise. To help determine if property is community property, the court will look at, among other things, when the property was acquired (before, during, or after marriage), how is was acquired (with the community property money of the spouses? or with the labor of a spouse while married which is thus community property labor) and if there are any statutory presumptions or other actions by the parties which may cause the property to be classified as something other that what it typically would be.

One such action is an agreement between the husband and wife during marriage that a property will be characterized as what it typically is not. For example, a car that was purchase during marriage with the community property income of the spouses. Typically the car would be characterized as community property. However, if the parties agree to change the character of the property from community property to separate property (called transmutation), as in "ours" to "yours only," the car will be viewed by the court as separate property. This agreement, however, must be in writing and signed by the party whose interest is being harmed.

More information on community property and divorce law and procedure may be found at the California Divorce information and Domestic Partner law info.