I AM GOING THOUGH DIVORCE, CAN I KEEP MY HOUSE, SAVINGS, RETIREMENT … ?

California is a community property state.

Each spouse is entitled to receive 50% of community property unless spouses agree to divide community property in a different proportion.

Each spouse keeps his/her separate property unless separate property was transmuted to community property or to the other spouse’s separate property.

Community property is all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state (California), unless property was acquired by gift, bequest or inheritance. (Family Code Section 760.)

Separate property is:

1. All property owned by the person before marriage.
2. All property acquired by the person during marriage by gift, bequest, devise, or descent.
3. The rents, issues, and profits of the property described above.
4. All earnings and accumulations of a spouse after the date of separation and after entry of a judgment of legal separation.

(Family Code Section 770-772.)

Transmutation:

California law allows both spouses to change the characterization of the property during the marriage, which is called transmutation. Married persons can make the following transmutations:

1. From separate property of either spouse to community property.
2. From community property to separate property of either spouse.
3. From separate property of one spouse to separate property to the other spouse.

(Family Code Section 850.)

A transmutation of real or personal property to be valid has to be in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. (Family Code Section 852.)

Examples:

1. I acquired a house before marriage but during marriage I added my spouse’s name to the deed. Is it still my separate property? Can I keep it? The answer is no, if you had intent to transmute this house (your separate property) to community property and requirements of Family Code Section 852 (see above) were met. You can keep it, but you will have to “buy out” your spouse.
2. I bought a car during marriage and the title is on my name. Is it my separate property? The answer is, it depends:
   a. Did you use your separate property money to buy the car? If so, then the car is your separate property.
   b. Did you use community property money to buy the car? If so, then the car is community property.
   c. Did your spouse agree to transmute the car to you as your separate property in accordance with the terms of Family Code Section 852? If so, then it is your separate property. If not, then it is community property.
3. I bought a house before marriage but we have been using our community funds to pay for the mortgage. Is this house my separate property? The answer is yes, but your spouse has rights to ask for reimbursement.
4. I have a retirement/401(k) plan. Is it my separate property? The answer is, it depends:
   a. The amount of money you saved before marriage is your separate property.
   b. The amount of money you saved from the date of marriage to the date of separation is community property. Your spouse has rights to ask for 50% of the amount accumulated from the date of marriage to the date of separation.
   c. The amount of money you saved after the date of separation is your separate property.

Division of community property is the most complicated issue in family law. Make sure your talk to an attorney before signing any agreements.

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