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Community Property v. Separate Property and what am I entitled to receive?

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.

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.)


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.)

For example:

1. Your husband/wife acquired a house before marriage but during marriage he/she added your name to the deed. Was this house transmuted from his/her separate property to community property?

The answer is yes, but only if your spouse had intent to transmute his/her separate property to community property and requirements of Family Code Section 852 (see above) were met.

2. My husband/wife bought me a car. Is it my separate property? The answer is, it depends on many circumstances.

a. Did he/she use her separate property money to buy the car?

b. Did he/she transmute the car to you in accordance with the terms of Family Code Section 852?

c. What was the value of the car?

d. What is your standard of living?

e. Etc.

3. My husband/wife bought a house before marriage but we have been using our community funds to pay for the mortgage. Is this house our community property? The answer is no, but you have rights to ask for reimbursement.

4. My husband/wife has a retirement/401(k) plan, but I don’t. Do I have rights to ask for ½ of his/her retirement/401(k) plan? The answer is yes, you do, but you only have rights to ask for ½ of the amount, which has been earned by him/her from the date of marriage to the date of separation.

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

DISCLAIMER: This Blog/Web Site is made available by the lawyer/law firm publisher for educational purposes ONLY as well as to give you general information, not to provide specific legal advice. This article should not be taken in any way as legal advice on your specific legal matter.

Please contact me at 619-737-3919 to schedule a 30-minute initial complimentary consultation to discuss your personal situation.

NOTICE: This Blog/Web Site constitutes advertisement materials and is meant for the residents of the State of California only. By using this Blog/Web Site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The materials presented in the Blog/Web Site may not reflect the most current legal developments, verdicts or settlements. These materials may be changed, improved, or updated without notice. The Law Office of Maria Rogova is not responsible for any errors or omissions in the content of this Blog/Web Site or for damages arising from the use or performance of this Blog/Web Site under any circumstances.

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Ms. Rogova, who is bilingual English-Russian, earned her law degrees from American and Russian universities. She earned her Russian law degree in 2003 and practiced law in Russia for over 7 years. Ms. Rogova has a broad range of legal experience in Russia such as contract litigation, corporate law, arbitration, real estate, and labor law. In addition to her law degree, in 2007 Ms. Rogova earned a Master of Finance degree.

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