When Does Separate Property Become Community Property in California?
Property division is an essential aspect of divorce. In California, property is divided according to community property law. Any marital or community property must be split between spouses. There is a division between what is separate and what is community property, but there are situations where separate assets can become community assets. Because of this, property division can get legally confusing, and spouses can have disagreements about the classification of assets. It’s essential to understand how this may happen when separating property.
Separate vs. Community Property
Whether property is community or separate depends on when it was acquired: before the marriage or during the marriage.
Community property refers to any assets and debts acquired during marriage. These are the assets that must be divided during property division. Community property includes:
- Anything earned during the marriage
- Anything acquired with community assets
- Any debt acquired during the marriage
Separate property refers to any assets acquired prior to marriage or after the date of separation.
Property such as gifts and inheritances provided to one spouse, even during the marriage, is considered separate property. Separate property is not up for division during divorce.
To determine whether assets are up for division, you must determine the date of marriage and the date of separation. Determining the date of separation can be tricky, as it refers to:
- The date that one spouse let the other know by word or action that they wanted a divorce
- Actions after that day that supported the wish for divorce
In California, community property is divided equally between spouses. If separate or community assets are wrongly categorized, or improperly valued, one spouse will not end up with their fair share of community assets. This is why it’s important to determine what assets are separate property and what assets both spouses have claims to.
The law assumes that any property acquired during the marriage is community property, unless one spouse proves otherwise.
Ways That Separate Property Becomes Community Property
During a marriage, there are two main ways that separate assets can become community assets: commingling and transmutation. The biggest difference is intent.
Commingling of Assets
The commingling of assets is not necessarily intentional. Separate property can become community property when it becomes intermixed, and tracing each person’s separate property is almost impossible. This may happen through:
- Separate assets deposited into joint bank accounts
- Retirement plans where contributions were made before and after the marriage
- Continued payments on separate assets throughout the marriage, like car payments or mortgages
If spouses want to trace their separate assets within community property, there has to be clear evidence of where funds were acquired and how they were used. Asset tracing requires clear documentation.
Transmutation of Assets
Separate assets can have their character intentionally changed to community property with the agreement of both spouses. When spouses willingly transmute separate assets into community assets, they cannot claim those assets as separate assets during divorce. Spouses must declare their intent to transmute property in writing. To prove to the court that an asset was legally transmuted, this process must be followed:
- The court determines if transmutation meets the validity requirements. This includes a written and express declaration by the original owner of the separate property of how this will negatively affect their interest in the property.
- The court determines if any wrongdoing impacted the transmutation. This may include fraud, undue influence, or force. The party claiming that transmutation is valid has the burden of proof to show that no wrongdoing occurred.
- The court must determine if a spouse has waived their right to reimbursement because of asset transmutation. The right to reimbursement in California’s family code is the right of a spouse to be reimbursed for their contributions to the other’s separate property in certain cases.
The court uses this information to determine if transmutation was valid.
Q: What Determines Community Property in California?
A: Community property refers to any property that a married couple acquired from the date of marriage to the date of separation. Both spouses have equal claims to community assets, and the property is split equally between the two during divorce. Community property includes debts and assets gained during the marriage as well as any assets acquired with community assets. It doesn’t include gifts and inheritances received by one spouse.
Q: Will My House Become Community Property in California?
A: A house is considered community property if:
- It was acquired during the marriage.
- It was bought with community assets.
- It was acquired before marriage by one spouse, but the other spouse made significant contributions to the mortgage.
- It was acquired by one spouse before marriage but was transmuted to be under the names of both spouses.
If any of these conditions apply, it is considered community property, and the court must determine how to split it equally between spouses. If one spouse acquired a home prior to marriage, it will be considered separate property unless the other spouse can prove otherwise.
Q: How Do I Convert Separate Property Into Community Property in California?
A: Separate property can become community property through the process of transmutation. This means that both spouses agree that an asset will become community property. The spouse who was the sole owner of the property must declare in writing that they understand how this affects their interest in the property. Spouses should consider carefully before transmuting property.
Q: How Long Do You Have to Be Married to Get Half of Everything in California?
A: There is no period of time a couple has to be married to receive half of the community assets. In California, property is split equally between spouses, no matter the length of the marriage. However, shorter marriages will likely have fewer community assets. Both spouses retain their separate assets that were acquired before marriage and after separation, unless separate assets were commingled or transmuted.
Separation of Community Property With a Bickford Blado & Botros Divorce Attorney
There are many complicated and frustrating aspects of a divorce, including spousal support, child custody, and child support. Property division requires several legal and financial professionals to do it accurately. Whether you and your spouse could negotiate your divorce with the help of a mediation attorney or you have to enter litigation, the attorneys at Bickford Blado & Botros can help you. Contact our team to see how we can advocate for your interests during divorce.
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