The Division of Property upon Dissolution in California


California Family Code section 760 provides: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." At dissolution, community property is divided equally between the spouses. This 50/50 split is presumptively correct and the courts will rarely deviate from this division, barring certain limited exceptions. One way to determine if something is part of the community is whether either party acquired it after they were married and before they separated with the intention to divorce. It does not matter who acquired the property, but only whether it was acquired during the marriage.

Some property, even if acquired during marriage, is exempt from being part of the community and is not subject to division. This is called separate property. Any property that a person acquired prior to marriage would be considered separate property. Likewise, any property acquired through gift or inheritance would be the acquiring spouses separate property. Furthermore, any property acquired after the parties' separation would likely be treated as the receiving party's separate property. Occasionally, the distinction between community and separate property may seem difficult to discern; however, the foundation of community property is the concept that the labor or effort of either spouse during marriage is community property. Thus, for example, if during a twenty year marriage one spouse earns a pension with his or her employer, the other spouse has a community interest in that pension. This community interest can be significant in long-term marriages.

If you have any questions regarding divorce, child custody, child support, or questions regarding the division of assets upon dissolution, please call Eric Martinelli with the Martinelli Law Group for a free consultation.