Who Gets What in a California Divorce? Answers to Common Questions.

Divorce is disruptive no matter how necessary or how much you and your spouse are in agreement. At Rodriguez Lagorio, LLP, we are here to relieve you of some of this burden. We are committed to helping you, no matter what your income. We believe everyone deserves access to quality legal counsel. Here are some of the more commonly asked questions about California property division.

What is community property?

Generally, the property you and your spouse acquire during your marriage is considered “community property,” with several exceptions. This includes your debts. Businesses and other complex properties may require valuation and further careful review.

How long do you have to be married to get half of everything in California?

Community property laws state that spouses have the right to half the marital assets. However, the property you bring into your marriage remains your own separate property unless a contract states otherwise. Unless you and your spouse married when you had no assets to your names, you will never have the right to half of “everything.”

Over time, though, you will accumulate more community property. The longer your marriage, the more marital assets you will accrue and the more property you will need to split equally.

Are there any assets that are not considered community property?

In other words, what is excluded from community property in California?

Some things are not community property. Separate property includes assets such as an inheritance, gifts received by one person, monetary awards won in a personal injury lawsuit or settlement, etc. Anything that was yours before the marriage or acquired after the date of separation is considered separate property.

When does separate property become community property in California?

Usually, separate property does not become community property in California. Instead, it can become “commingled,” in which part of the asset is joint and part is separate. For example, if one person buys a house before getting married, it is their individual property. However, if their spouse starts paying the mortgage, the money they contribute is usually joint property. That gives the spouse the right to a portion of the house’s value equivalent to how much they paid.

Commingled property can quickly become complicated. If you have assets that might be commingled, it’s important to talk to an experienced attorney about your situation.

Are debts also considered community property?

Yes. Typically, those debts acquired during the marriage are viewed as community debts and are divided in a divorce. Sometimes, one debt, such as gambling debts or student loans, may be allocated to one spouse. However, this is highly circumstantial, so discuss your options with an attorney before making any decisions.

Can you prevent assets from being considered community property during marriage?

Yes, there are ways to change, or transmute, an asset’s status before or during a marriage. You can use a prenuptial agreement or postnuptial agreement to set different terms for your property in a hypothetical future divorce. However, these contracts must be written before a divorce to alter your property rights.