Written by attorney Gregory Garth Brown

The Community Property System: The Difference between Community Property and Separate Property


The Community Property System: The Difference between Community Property and Separate Property


The Community Property System

If you are married in the state of California, then you have likely heard of the community property system. California is a community property state, which means that when you are married, most property acquired during the marriage is owned jointly by both spouses and is divided equally upon divorce, annulment, or death. Without specific evidence that says otherwise, property acquired during marriage is presumed to be jointly owned by both spouses. The basic concept of community property holds that marriage is a partnership, where the spouses devote their particular talents, energies, and resources to their common good, so whatever gains they may acquire in the marriage should be shared equally.

For purpose of community property law, property is generally characterized as separate, community, or quasi-community. Each characterization can have significant legal implications before, during, and after marriage. Separate Property

Under the Family Code, the separate property of a married person includes: (1) all property owned by the person before marriage; (2) all property acquired by the person after marriage by gift, bequest, devise, or descent; and (3) the rents, issues, and profits of all such property. Thus, generally speaking, the property that a spouse brings into the marriage and receives by gift or inheritance during the marriage is separate property.

Community Property

Community property is broadly defined as all real or personal property acquired during the marriage, unless otherwise provided by statute (like that defining separate property). This includes wages and income earned during the marriage. The real or personal property must have been acquired by the married person while they resided in a community property state. Residence generally refers to a place where a person lives or has his or her home, to which, when absent, the person intends to return, and from which the person has no present purpose to depart. The property also needs to be such that it can actually be owned, sold, or transferred. It must have some kind of monetary value, as well. Quasi-Community Property

The Quasi-community property regime applies in a situation where a married couple has moved to a community property state from a non-community property state. Once a couple resides in a community property state, then the personal or real property acquired during the course of their marriage while living in the non-community property state, and which is not considered separate property, is quasi-community property. Such property is treated as community property in the event of divorce or death.

The quasi-community property statute does not apply to situations where one of the spouses never moved to a community property state. For example, if a husband and wife lived in Pennsylvania for the majority of their marriage and the husband moved to California after the two were separated, but the wife remained in Pennsylvania, then Pennsylvania law would be controlling, not California’s community or quasi-community property statutes.

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