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What is the difference between community and separate property?

As you and your spouse divorce you must separate your belongings. If you or your spouse have begun living separately, you may have informally divided your belongings already. If this division works well or if you and your spouse come to another agreement about property division, you must be sure to have the agreement formally signed off by a judge. If you and your spouse cannot agree about who should take what, a judge may decide these issues for you.

Regardless of who ends up deciding on the property division, it is important to understand the difference between community property and separate property. This knowledge can help you advocate to receive your fair share of the belongings.

Community property

In California, your marriage made you and your spouse one legal community, and the property and debts that you or your spouse acquired during the marriage are considered community property. Community property also includes all of the money you or your spouse earned during the marriage and anything purchased that that money.

Items and debts that are community property must be divided during divorce. In California, you and your spouse each own one half of the community property, so possessions and debts that are considered community property are usually divided equally.

Separate property

Separate property includes anything you or your spouse owned before you were married, as well as inheritances and gifts given to only one spouse at any time before or during the marriage. Money you earn from separate property and anything purchased with separate property is also separate property. Also, anything acquired after your date of separation is separate property.

Items and debts that are separate property do not get divided in divorce. Instead, they stay with the spouse who owns the property.

Special circumstances

Often you can determine if something is community property or separate property by looking at the date an item was acquired and the source of money used to purchase the item. However, sometimes it is difficult to determine if a particular asset is community or separate property.

If you and your spouse lived outside of California during your marriage, some of the items acquired during that time may not be considered community property in the state you were living in, but may have been considered community property if you and your spouse were living in California. In situations like this, the property is considered quasi-community property and is treated as community property in a California divorce.

Some property has characteristics of both separate and community property because separate and community property have been mixed together. This is called “comingling,” and can be complicated to divide in divorce.

Comingling usually occurs when one spouse owned an asset before marriage, but community money was used to add to or improve the asset during the marriage. This often happens with houses and retirement benefits.

You and your spouse must formally divide your property before your divorce can be finalized. However, you may reach a better outcome if you understand what property is eligible for division and how that property is usually divided.

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