One of the jobs of the Family Court and the family law attorneys is to determine what property is ‘community property’, and what property is ‘separate property.’ Family Code Section 760 defines community property as follows: "Except as otherwise provided by statute, all property, real or personal, acquired by a married person while domiciled in this state [California]…"
Family Code Section 770 basically defines separate property as property owned by a spouse prior to marriage, acquired after marriage, or acquired during the marriage by gift, devise or descent. Rents, issues, and profits derived from separate property are also separate property.
Community property is supposed to be divided equally between spouses, while separate property belongs 100% to the spouse who owns it. In theory, these sound like relatively easy rules. However, quite often, spouses tend to mix community property with separate property, or vice versa. For example, a home owned by one spouse prior to marriage but put in both spouses’ names during the marriage can have both a separate property aspect and a community property aspect. As another example, one spouse could have been contributing to a pension prior to marriage, and then continued to do so during marriage. That pension now has a community property aspect and a separate property aspect to it. The end result is that the family law attorneys and the judge are required to trace where a particular item of property came from, how it was acquired, what was the intent of the spouses at the time the property was acquired, and what portion of that property is community property and what portion is separate property.
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