Understanding the Meaning of Community Property
How do you know your spouse is a good housekeeper? After the divorce, he/she keeps the house! Have you heard of the new divorced Barbie doll? She comes with all of Ken's stuff!
Morbid as they may be, these jokes are all based on a concept called Community Property. For those who don't know, California is a community property state. What does that mean, exactly?
California law defines Community property as any income, asset or debt (yes, even debt!) that is acquired by either spouse during the marriage. And yes, income earned by either spouse during the marriage is also fair game. Separate property is defined as anything acquired by a spouse before the marriage, during the marriage by gift, devise, or bequest, and after the parties separate.
The Significance of Community Property Laws
California law requires that the community estate be divided equally if there is no written agreement requiring a particular division of property. (Please see my article about prenups) This means that the joint debts of the parties are subtracted from the total market value of the community assets, resulting in the net community estate. Unless agreed otherwise, each spouse must receive half of the net community estate.
How the Community Estate is Divided
When I say that each spouse must receive half of the net community estate, I do not mean that the parties must chop their house and cars in half. All that means is that the net value of all the community assets received by each spouse must be the same. This involves a three-prong process which entails 1) determining whether the property is community property or separate property 2) figuring out the fair market value of the property and 3) deciding how to decide the property. Any discussion of community property will naturally bring up a discussion of separate property.
What is Separate Property
Separate property is any asset or debt acquired by either spouse before the marriage or during the marriage by gift or inheritance and anything acquired after the parties separate. Separate property remains the sole property of the spouse who acquired it and is not subject to division in court.
If the post-divorce division of property is a concern for you, you should consider reading my article about Pre-nups. You also have the option of getting a post-nuptial agreement, which is an agreement reached during the marriage.
As always, it is imperative that you at least consult with a competent family law attorney if you are going through a divorce that involves significant property division. Doing so will ensure that you do not accidentally jeapordize any of your rights over the community and separate property.
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