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What Property Is Not Divided in a California Divorce?

Tue 31st Oct, 2023 Family Law

It is commonly understood that property division in California divorces is 50/50. While this generally is true, it does not necessarily mean that every single asset you and your spouse own will be divided that way, as not all property is considered community property. Separate property that you and your spouse own as individuals (more on that below) is not divided, nor is certain property that is covered by a prenuptial agreement. However, separate property can become community property in some cases, which further muddies the waters. A Stockton divorce attorney can help you sort out which of your property is likely to be divided and which is not. 

What Is Community Property, and How Is It Divided? 

Community property is property that either or both spouse acquires during the marriage. It belongs to both spouses equally and includes anything you earned while married, anything you bought with money you earned while married, and any debts you accrued while married. Since this property is owned equally, it is also divided equally upon divorce. 

Property Not Divided in California Divorces 

As with almost all laws, there are exceptions to the 50/50 rule of property division in California. The following categories of property are not subject to equal division:  

Separate Property 

Separate property is property that you or your spouse own as individuals. It includes: 

  • Property you owned prior to marriage and that has not become community property
  • Property obtained as a gift
  • Property received through a will or trust 
  • Property purchased using separate assets (e.g., one spouse’s separate funds that are held in an account that the other spouse cannot access)

Property Acquired During Separation

While spouses are still legally married while they are separated, any property acquired during the period of separation is not considered community property under California’s property division laws. The date of separation is the date that a complete and final break in the marital relationship has occurred.

Property Covered by a Prenuptial Agreement

The third category of property that is not divided equally upon divorce is property covered in a prenuptial agreement. For example, for couples who are financially independent, a prenup could provide that certain income, assets, or liabilities incurred during the marriage remain separate property. 

Commingle Carefully 

The categories of separate property and community property are not set in stone. In fact, separate property can become community property if a spouse does not take the proper steps to prevent commingling. For example, a house that was separate property could become community property if the spouse who owned the house used community assets to improve it. This outcome can be avoided through careful accounting or a prenuptial agreement. 

Plan for Property Division With Help From a Stockton Divorce Attorney

Property division can be a complex process, particularly in high-asset divorces and high-conflict divorces. The best way to ensure that you receive the full benefit of your separate property is with the assistance of an experienced attorney. For more information, please contact a Stockton divorce attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.

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