Property Characterization in California

The first thing the court must do with regard to your property is to characterize your individual property items as either community property or separate property. The court can also apportion each asset as either part community property and part separate property.

There are several factors that the court will look at to determine if the item is community property or separate property.

Some property in which you own, such as your house, may have a document indicating ownership. In that case, after 1984, property you acquire during marriage in joint form of any kind is presumed to be community property.

That presumption may only be rebutted by evidence of a contrary agreement or understanding, not by tracing the funds used to purchase the property or by evidence of a spouse's undisclosed intention at the time of execution.

Property acquired before marriage is usually the separate property of the acquiring spouse.

Anything you acquire during marriage and before you separate from your spouse is presumed to be community property. You can overcome this presumption by tracing the acquisition of the item back to your separate property.

Property you acquire during marriage but after you separate from your spouse is ordinarily separate property.

Any gift or inheritance you receive either before or while married is going to be separate property.

Many assets, such as investments or rental property, will generate profits or other income. Such money or property generated by other property will usually take on the character of the assets from which they derive. In other words, if you own a bond that is your separate property, the interest payments generated will be your separate property.

While married, any property purchased with borrowed money will be presumed to be community property. But if you can prove that a loan was made on the separate assets and credit of one spouse, then the property acquired by the loan will be that spouse's separate property.