Helping Families Navigate The Difficult Road Of Divorce

The Difference Between Community Property And Separate Property

In California, all real estate and personal property obtained during the marriage is generally considered community property. This includes income earned during the marriage. All real estate, personal property and income obtained outside of the marriage or by gift or inheritance is generally considered separate property. That is straightforward, but it gets more complicated where community property is mixed with separate property or vice versa. It also can get complicated if separate property is used to pay for community property (also vice versa). There are also significant and complex issues if a business is involved.

When it comes to understanding how property is divided in a divorce, you must first identify all property you and your spouse own. Identifying the property may be difficult if your spouse did not share all the information about your assets during the marriage. If you suspect there are assets your spouse has hidden, it may be necessary to hire an investigator, issue subpoenas and conduct discovery. You may even want to hire a forensic accountant to take a look at bank statements.

The Facts That Determine What Property You Will Keep In A Divorce

Since California is a community property state, property will be characterized as community or separate. The status of the property will be the most important determining factor in dividing property and dividing real estate in a divorce. This is the starting point.

How Do We Decide On The Status Of Our Property?

Ideally, the parties can both agree on the status of all property owned. If not, then there are several questions you should ask about the property that you want to divide. Courts will look at the answers to these questions decide the status of the property:

When was the property acquired?

The first question to ask is when was the property acquired? Property acquired before marriage is generally separate property and property acquired during the marriage and before separation is presumed to be community property – except for property acquired by gift or inheritance. And, if property can be “traced” to something that was acquired before marriage or after separation the status of the property can be in question. But, keep in mind that tracing alone will not work to rebut or challenge property acquired during the marriage and held in joint title.

There are two terms that need to be understood in the previous paragraph:

  • Acquired – In very general terms, a property is “acquired” when the ownership right of the property started. Ownership rights become complicated if the right to purchase is separate from the actual time of purchase, for example when you are dealing with stock options or a contract to purchase. You will need to consult with an experienced divorce attorney if this situation applies to you.
  • Traced – Tracing in a divorce context is, generally, identifying the source of funds used to purchase a property. The status of the property, including rents and profits, take on the character of the property that produced them. And, there are two general ways to trace. The first is direct tracing, which requires looking at the money deposited into a certain account, the money deposited stays in the account when the money is withdrawn for the purpose of purchasing the property being traced, and the person withdrawing the money intends to withdraw the funds to purchase the property. The second is family expense tracing which is conducted by a process of elimination. The account needs to be shown to have been exhausted of community funds at the time the property was purchased or acquired. Tracing in this manner is complicated by commingled funds. “Commingling” refers to the mixing of community property funds and separate property funds.

You may consult with me, Hogan W. Song, an experienced Orange County divorce attorney when you have to trace questions for your particular situation.

How was the property acquired?

After looking at when the property was acquired, courts will look next to how the property was acquired. Let’s start with the general rule: the status or character of property does not change by a mere change in form or identity. In other words, property acquired from a community source remains community property and property acquired from a separate property source remains separate property. So, property acquired from earnings is community property, since income from labor, time or skill during marriage and prior to separation is community property. But, property acquired during marriage by gift or inheritance is the separate property of the recipient, unless given to both. When a property is acquired in unusual situations, there are other rules that may come into play. So, check with an experienced Orange County divorce attorney to see how the general rules work for your specific situation. When it is unclear how the property was acquired, tracing becomes even more important. Often, disputes regarding the status or character of property boil down to determining the source of the property.

A key method to get the evidence and information about the source is through discovery. But, often discovery is misused and mishandled in family law. Family law attorneys typically do not understand how to conduct discovery in an efficient and cost-effective manner. Conducting discovery in a regular civil lawsuit is much easier because civil attorneys usually understand the boundaries. They understand that hundreds of requests for production or special interrogatories are not necessary. Carefully crafted discovery can save you significant attorney’s fees. Carefully crafted responses to discovery can also help you win your case, and it can be done without “hiding the ball.” Speak to an experienced Orange County family law attorney who understands discovery before you fall in the chasm of discovery hell.

How is the property owned?

Another factor is how the property is owned. Put into more legal terminology, what is the form of the title? Form of the title refers to the description of how a property is owned. How title to property is held will usually determine how much work is involved in proving ownership is different than what is in the title documents. But, just because the form of title or identity of the property has changed, does not necessarily change its status or character. For example, a business owned before marriage doesn’t change simply by incorporation during the marriage. Another example is when real estate is held by one spouse then the other spouse is added onto the deed.

Has there been a valid change of status?

Spouses may agree to change the status of any property – from separate into community, community into separate, or from one spouse’s separate property to another spouse’s separate property. This process is called “transmutation” and it only changes the status or character of property if certain rules are followed.

Merely transferring property from one spouse to the other does not necessarily change the character or ownership. There has to be an “express declaration that is made…” A signature is not enough, the signature has to be accompanied with very clear language that one spouse is giving up her right to the property – a clear demonstration of a change in ownership or characterization of the property.

Contact A Knowledgeable Property Division Attorney Today

The answers to these questions will form the basic approach of how to divide property in a divorce. These are general guidelines and I will be happy to assist you further. Call Song Family Law, APLC, in Mission Viejo and Orange at 888-999-0259 for a consultation today. You may also contact me online through my secure website.