If you are going through a divorce in California, you may be wondering if everything you owned with your spouse is community property. California is a community property state. So, absent a valid pre or postnuptial agreement marital property rights of California are fixed according to community property law. If that sentence is confusing, you are not alone. Contact an experienced Marin County divorce attorney today.
Some people have the misunderstanding that each spouse gets 50% in a divorce. This is a generalization. In fact, many people get less than half. Many people get more than half. If you are divorcing your spouse, you need to understand what is considered “community” and what is considered “separate.”
What is Community Property?
Community property refers to property that comes into marriage during the marriage while domiciled in California “except as otherwise provided by statute.” Fam. C. § 760. For registered domestic partners, community property refers to all property acquired during the partnership while domiciled in California Family Code Section 297.5.
This means that if you acquire property during marriage it is likely community property but there are exceptions. One example is, in general, earnings during marriage. If a person earns $50,000 as a W-2 employee during his first year of marriage, that money is likely community. If you and your spouse buy a car with that $50,000, it is likely community property.
What is Separate Property?
The separate property takes many forms. First, an asset owned prior to the date of marriage is separate property. Second, an asset acquired after the date of separation is separate property. Separate property acquisitions during the marriage such as gifts to you alone or inheritances are your separate property. Marital earnings after the date of separation or after a judgment of legal separation are also your separate property. Certain personal injury damages are also separate property. (Fam.C. 781). The best Marin County divorce attorneys will be able to analyze your personal injury settlement and give you the most accurate advice. Lastly, community property transmuted to separate property retains the character of separate property.
What If My Ex Stole My Share of the Community Property During Marriage?
If your ex wrongfully took your share of a community property asset, he or she may have to return it. Each spouse has a 50% ownership interest in community property. Each spouse has an equal right to manage and control the property. But these rights are subject to intra-spousal fiduciary obligations, as set forth in Family Code 721 (b).
Family Code 721(b) concerns the fiduciary relationship between spouses in any transactions between themselves.
(a) Subject to subdivision (b), either spouse may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.
(b) Except as provided in Sections 143, 144, 146, 16040, 16047, and 21385 of the Probate Code, in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:
(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.
The fiduciary relationship outlined in Family Code 721 (b)
The fiduciary relationship outlined in Family Code 721 (b) is a confidential relationship that imposes a “duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.” Further, it states that this fiduciary relationship is similar to nonmarital business partners. This means that transactions between spouses during the marriage must be fair. If one spouse attempts to defraud the other spouse of his or her share of the community property, for instance, a court may set aside the transaction.
Should I Hire an Experienced Marin County Family Law Attorney?
If you have need legal advice regarding your divorce, contact a marin county divorce attorney today for a free consultation.