During the divorce process, property that the parties owned during marriage will be equally divided between them upon the dissolution of their marriage. Such property is known as “community property” under California law.

Conversely, some property is not considered to be divisible community property when you get divorced. This type of property is known as “separate” property and is often the subject of significant debate in divorce proceedings involving the division of community property.

The Definition of Separate Property Under California Family Code

California Family Code § 770 provides that “separate property” includes:

  • Property owned before marriage
  • Property acquired after marriage by “gift, bequest, devise, or descent”
  • Income derived from the above, including rents and profits

Furthermore, under California Family Code § 771, a spouse’s earnings and that of their children over whom they have child custody are considered their separate property when acquired after the date of separation.

The phrase “gift, bequest, devise, or descent” refers to the property a person receives by way of inheritance. As a result, if you receive an inheritance while still married, it qualifies as your nondivisible separate property.

However, if, for example, you bought property that one of your siblings inherited, it probably does not qualify as your separate property if purchased while you were married. Courts will look at the documents related to your inheritance, such as a Last Will and Testament, and any trust documents in an estate plan to determine when your interest in inherited property arose, implicating the concept of “inception of title.”

The Inception of Title Theory

An asset could be shown to be a person’s separate property if the equitable right to the asset was acquired before marriage. This concept has been called the “inception of title” theory. As a result, courts will look at the date when the party first obtained a property right in an asset to determine its community or separate character.

Transmutation of Property

Spouses can change community property into separate property through a written express declaration that unambiguously indicates an intent to change the property’s character or ownership. This concept is technically referred to as a “transmutation” of property.

Courts have held that a quitclaim deed with language purporting to release a party’s rights to their spouse as their “sole and separate property” and that the party “claimed no ownership rights” is not enough to effectuate a transmutation.

Reimbursement for Separate Property

If a party makes contributions from their separate assets to aid in acquiring community property, they are entitled to a reimbursement of those separate property contributions. For example, if you and your spouse purchased a home during your marriage, but you used separate property funds to make renovations and mortgage payments, there is a decent chance that you will be entitled to a reimbursement for the cost of renovations and mortgage payments.

Contact Moshtael Family Law for Answers to Your Legal Questions

California family law regarding the distribution of community property at divorce can be complicated. To get a better understanding of your property rights in your divorce case, you should consult an experienced attorney from Moshtael Family Law.

For an initial case evaluation with a member of our legal team, please call us at (714) 909-2561 or contact our office online.

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