What Happens to Property in a Divorce?

By Jaspreet Hundal - Family Law Attorney

California community property laws control the answer to this question. These laws are complex and riddled with exceptions. This article is a very brief synopsis and should not be relied upon as legal advice. A minor change in facts can drastically change this analysis and various nuances have been omitted from this article for efficiency.

Community property law is a legal concept that governs how assets and liabilities are divided between spouses in California. In California, all property, real or personal, acquired during a marriage and prior to separation, while domiciled in California, is presumed community property. This is known as the “general community property presumption.” Under this presumption, property acquired during the marriage is presumed community. This presumption can be overcome in a few ways. Each spouse has a 50% interest in community assets, including earnings, investments, and real estate, regardless of whether it is in one, or both spouse ’ s name.

Assets acquired before marriage, or through inheritance or gift during the marriage, are considered separate property and are not subject to division during a divorce. However, the burden is on the spouse claiming separate property to provide evidence proving it is in fact separate. This is not always a simple process. If a spouse cannot prove that an asset acquired during the marriage is separate, it will likely be classified as community.

Classifying an asset is the first step toward dividing property in a divorce. After classifying as community or separate, assets can then be divided. Upon divorce or legal separation, the court will divide community property equally. This means that each spouse will receive 50% of the community property, regardless of who earned the income or who made the purchase. Note, however, that spouses can agree to divide assets however they generally wish, including an unequal division. Absent an agreement, the default rule is an equal division.

Separate property, on the other hand, is not divided. It is confirmed to the separate property spouse (and why properly classifying an asset as community or separate is important).