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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appreciation, that is distributed or withdrawn from a trust by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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