One of the most-asked questions concerning a divorce in California is how the courts will divide property acquired during the marriage, or community property. Community property can be anything obtained during the marriage: homes, businesses, bank accounts, retirement accounts, vehicles, stocks and other investments, pension funds and retirement accounts – just to name a few. It can also include any debts accumulated during the marriage. So, how do you decide who gets to keep what?

California is one of nine states in the United States that recognizes community property, so there are a few important facets you’ll need to understand that might be different than other parts of the country. Understanding California’s division of property laws can help you protect your interests during a divorce – here’s what you need to know.

California is a Community Property State

In a divorce, there are two main types of division of assets laws: community property and equitable distribution. Since California is a community property state, the court will split all assets and debts acquired during a marriage, called community property, evenly. California courts assume both parties have equal rights to all assets, financial obligations, properties and wages that the couple has accumulated during the marriage.

California’s community property division laws may increase the chances of getting spousal support, since one spouse may make less money yet still have the same amount of debt as when he or she shares income with the spouse who earns more.

One detail that can impact community property division of assets is the date of separation. In the state of California, the date of separation is the date the spouses or domestic partners felt as if their marriage ended. It does not have to correlate with one spouse moving out of a shared home or filing divorce papers. After the date of separation, items purchased by either spouse are no longer considered community property so long as these assets are purchased with income earned after the date of separation. If the spouses or domestic partners cannot agree on the date of separation, the court can decide, based on evidence.

Because California is a community property state, California does not recognize “common law” marriages, which means that absent a valid marriage, even if a couple is together for 7 years or more, neither party will have any community property rights. There are certain, limited situations where, even if a couple is not married, the court may still find that an obligation exists to divide property between the parties, or provide support to one party. This is called a “Marvin action”. This is an uncommon circumstance, and we would be happy to discuss this type of action in a consultation.

Equitable Distribution in California

In contrast to a community property state is an equitable distribution state. A division of assets is not necessarily split down the middle; many factors can be involved, and a judge could issue an unequal distribution if it is deemed reasonable and fair under the circumstances. California is not an equitable distribution state.

What is Separate Property?

Separate property are items that either spouse or domestic partner owned prior to the marriage and continued to keep separate during the marriage. This can include bank accounts or investments that one party owned prior to marriage, real property purchased before marriage, and also any debts that party had before marriage (like student loans). Inheritances are always the separate property of the receiving party, so long as the money does not get mixed up with assets acquired during the marriage. Any property obtained after the date of separation is also considered separate property.

Some items can count as both community property and personal property. This can be anything acquired before the marriage but is then shared during the marriage in some way. This most often occurs with bank accounts and retirement accounts. For example, any deposits made into a retirement account before marriage (and any gains on that investment) are separate property, but any contributions made to that retirement account during marriage are community. The community gains an interest in the retirement account that, upon divorce, will have to be identified, valued and separated. Another common “mixed asset” is real property – where one party purchases a house either before marriage, or with separate funds, but both parties live in the house and pay down the mortgage during the marriage.

Understanding Transmuted Property

Any assets that changed possession during a marriage is classified as transmuted property. In California, community property can become separate property, and vice-versa. It is also possible to swap ownership of separate properties. An example of this would be any asset that belonged solely to one spouse who then completely transferred it to the other spouse. This most often happens with real property, where, during a refinance or after marriage the new spouse’s name is added to the previously separate title to the property.

Dividing Property in a Divorce

Divvying up property during a divorce can be simple, or it can be a contentious and stressful part of the division of assets. Largely, it depends on your current relationship with your spouse or domestic partner as well as their readiness to cooperate.

While the court has limited ability to make orders to divide property unequally, it is possible to reach an agreement between the parties and outside of court that restructures the division of assets in a way that works better for the parties’ particular circumstances. It is possible to avoid going to court during your divorce, but if you want to steer clear of court intervention, you and your spouse must be able to reach a compromise on issues like property division, child support, parental responsibilities and spousal support. Keep in mind that if you and your spouse can come up with a mutually agreeable solution, a judge will most likely sign off on it so long as it is fair to both parties.

Many divorces can be handled outside of court, and there are many great options for divorcing couples who can agree on the terms of their divorce. Online programs like, or are two online options to assist parties to navigate the divorce process without necessarily using attorneys.

Most courts also have very user-friendly information on how to represent yourself in a divorce. For example, Alameda County Superior Court has a lot of information to help those who do need or have an attorney.

While there are elements of the divorce that you can handle on your own, it may be helpful to seek out a knowledgeable divorce attorney that can help you answer questions, plan for your divorce, or help you prepare or double-check important documents

How to Divide Property Fairly

An unavoidable part of any divorce is the identification of all assets and debts that exist at the date of separation. The court cannot enter the final judgment unless and until both parties swear under oath that this information has been exchanged. These assets and debts are identified on a specific form, called a Schedule of Assets and Debts. This form is what needs to be provided to the other party, but it does not get filed with the court. We typically suggest that when you are filling out this form, any time you look at a document to answer the question, attach a copy of that document to the form. This ensures that both parties know what assets exist, how much they were worth at the time of separation, and where the assets are. This also ensures that both parties have copies of bank statements and credit card statements with the actual account numbers, just to ensure that the numbers are identified correctly.

To get started dividing your community property, it may be helpful for both parties together to make a master list of everything you and your spouse or domestic partner own as of the date of separation. This includes any properties, assets or debts that were accumulated during the marriage. Anything that was owned prior to the marriage (including debts) should also be noted if you want to make sure that these assets or debts are assigned to a certain party and not divided equally between the parties.

Then, assign each item on your list a market value. This is how much you believe the item is worth. We typically suggest that when you are filling out this form, any time you look at a document to answer the question, attach a copy of that document to the form. This ensures that both parties know what assets exist, how much they were worth at the time of separation, and where the assets are. This also ensures that both parties have copies of bank statements and credit card statements with the actual account numbers, just to ensure that the numbers are identified correctly. Next, ask your spouse or domestic partner to make a list, and then compare the two lists. This will allow you to check for any discrepancies and possibly come to a mutual agreement about how to divide the assets and debts.

It may be easier to compromise if you and your spouse or domestic partner are seeking different assets or are willing to take responsibility for certain debts. If you cannot come to a compromise, you can work with a mediator to help negotiate your division of assets. A mediator is a third-party individual who acts as a go-between that listens to both sides of a disagreement and helps generate a mutually agreeable solution.

Issues After Property is Split

After you have divided your property and debt through either a Marital Settlement Agreement (MSA) or a court judgement that outlines who gets what, you still might need to take additional steps if your ex-spouse or domestic partner doesn’t follow through on your agreement or the court orders for division of assets. In such cases, it may be helpful to talk to an attorney about your ability to enforce the terms of the judgement.