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Divorce Library > California Division of Property


Property Division in California Divorce
California is a state in which each spouse is presumed to have an equal interest in any property acquired during marriage while living in California.
Such maritial property is characterized as "community property." However, property owned by a person before marriage is characterized as "separate property." In a California divorce, the parties may divide marital property by agreement on the status and interest in all of the property or part of the property. However, if an agreement cannot be reached, the court is left with the task of deciding the party’s interest and distinguishing which of the marital property is "community" and which is "separate."

Community Property
Community property is characterized in the California Family Code section 760-761 as follows:
760. Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
761. (a) Unless the trust instrument or the instrument of transfer expressly provides otherwise, community property that is transferred in trust remains community property during the marriage, regardless of the identity of the trustee, if the trust, originally or as amended before or after the transfer, provides that the trust is revocable as to that property during the marriage and the power, if any, to modify the trust as to the rights and interests in that property during the marriage may be exercised only with the joinder or consent of both spouses.
(b) Unless the trust instrument expressly provides otherwise, a power to revoke as to community property may be exercised by either spouse acting alone. Community property, including any income or appreciation, that is distributed or withdrawn from a trust by revocation, power of withdrawal, or otherwise, remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal.
(c) The trustee may convey and otherwise manage and control the trust property in accordance with the provisions of the trust without the joinder or consent of the husband or wife unless the trust expressly requires the joinder or consent of one or both spouses. (d) This section applies to a transfer made before, on, or after July 1, 1987.
(e) Nothing in this section affects the community character of property that is transferred before, on, or after July 1, 1987, in any manner or to a trust other than described in this section.

Separate Property
Separate property is characterized in the California Family Code section 770-772 as follows:
770. (a) Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
(b) A married person may, without the consent of the person's spouse, convey the person's separate property.
771. (a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse.
(b) Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to a contract of a type described in Section 6750 shall remain the sole legal property of the minor child.
772. After entry of a judgment of legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring the earnings or accumulations.

More About Division of Property in California Divorce
Whether you and your spouse agree on the characterization of marital property and your interest in the property, "community property" and "separate property" are important legal terms that you should become familiar with. Having a general knowledge and awareness of common legal terms and with the help of an experienced family law attorney or divorce attorney, you can have greater assurance that you are doing what is necessary to protect your parental rights, parental responsibilities, and your relationship with your children. To present your case to Southern California divorce attorneys, divorce lawyers, and child custody attorneys in your area now, click here >>

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