Divorce: What Is Community Property? It’s Mine, No It’s Mine. Well, Which Is It?


Author: Lowell Steiger

Published On: October 19, 2009

Community Property laws vary from state to state. Does Community Property Law apply in your state? Well, here’s the list:

  • California*
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

So, what then is Community Property? Simply defined, “Community Property” is all real and personal property, wherever situated, that has been acquired during marriage by a married person while domiciled in California* unless the property was his or her separate property.

Wait! The word “unless” is in that definition. Yes, the “unless” part is very important when dividing property upon the dissolution of marriage. What, then, is “separate property?” “Separate property” is all property of either spouse, owned before the marriage, or acquired after marriage by gift, inheritance, or descent, together with the rents, issues, and profits of such property.

Here are some examples of separate property:

  • Property one spouse owned before the marriage
  • Gifts received by one spouse before or during the marriage
  • Property acquired during the marriage in one spouse’s name and never used for the benefit of the other spouse of the marriage
  • Inheritances received before or during the marriage
  • Property that the spouses agree in writing is separate
  • Property acquired by one spouse using separate property assets with the intention of keeping it separate, and
  • Certain personal injury awards

Asset division is serious business and needs to be handled by an attorney. What one spouse thinks is theirs may not be theirs! For example, during the course of a 30 year marriage, Aunt Lettie left her entire $15 Million estate to her loving niece Jenny. When Bob and Jenny decide to divorce, Bob is feeling pretty good because he’s going to walk away with $7.5 Million!!! Wrong Bob. That inheritance is belongs to Jenny 100%. This is separate property.

Feel free to consult my office if you’re planning to get a divorce (or if you’re in the throes of it now). Please note that Community Property v. Separate Property is just one of the complex issues in a marriage dissolution. The issues of custody, child support, alimony, separation v. dissolution/divorce, restraining orders, retirement plans and/or tax consequences must also be addressed.

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