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Separate Property vs. Community Property

When you are thinking of getting a divorce, you may be nervous about your spouse “taking it all” and leaving you with nothing. While you may hear some terrifying divorce horror stories, this is (thankfully) very unlikely to happen. The mediators at San Diego Family Mediation Center are well versed in California community property law and can assist you in navigating this complex area. Here is a brief overview of community property and how it differs from separate property. Please note, this is a fundamental explanation, and there may be some circumstances that could change the characterization of an asset and this is not to be construed as legal advice. If you have any specific questions about your divorce, it is best to speak to your mediator or an attorney.

What Is Separate Property?

Separate property is any property that you obtained before the marriage, after your date of separation, or was given to you as a gift or through inheritance. When you get a divorce, your separate property goes with you in its entirety. There are some circumstances in which separate property may have intertwined with community property so extensively that it can be impossible to separate. When this happens, the separate property becomes community property. If you have substantial separate property that you would like protected, it is crucial that you draft a prenuptial or post-nuptial agreement to specify what is to be characterized as separate property.

What Is Community Property?

Any assets or debts that are acquired during the marriage are characterized as community property. Upon a divorce, each spouse has a ½ community property interest in the property (both assets and debts). That means that each person should receive ½ the value of the asset or debt during divorce. For example: If you own a marital home, and going through a divorce, both you and your spouse have an interest in ½ the value of the home. If one spouse wishes to keep the house, they must pay the other spouse ½ the fair market value of the home. If the house is sold, profits are split 50/50. With community property laws in place, both spouses are treated equally and should never be left empty handed.

If you have questions about how community property laws impact your divorce, contact an experienced mediator at San Diego Family Mediation Center today. Call (858) 736-2411 today to schedule your appointment.