Community Versus Separate Property


When your marriage ends, you can ask the court to divide your “community property” acquired during marriage. Hopefully, you and your spouse will be able to reach an agreement as to what assets and debts of your marriage are community, and divide them equally, without the court being the decision maker.

Separate Property

There is an urban myth that when a couple marries, all assets and liabilities of the parties magically become “community.” If you marry someone and you own nothing but your student loan debt and the shirt on your back, and your new spouse owns a beach-front home and a long-established law practice, do you believe those assets now belong equally to you? Or if your spouse inherits one hundred million dollars from her Aunt Gertrude, are you legally entitled to half of the one hundred million dollars? The answer in California is NO.

Now imagine if you stay married to that person 25 years or more, and raise 3 children with your spouse. You might be in for a shock, in the event of a divorce, if you and your spouse never clarified what was separate and what was to become community property. In that event, expensive litigation, involving the services of dueling forensic accountants, may be required, to determine what your community interest is in the marital estate, versus the separate property interests of your spouse. Our firm is very experienced with this type of litigation, but will help you avoid litigation, if possible.

Prenuptial Agreements

Before you marry someone who has a well-established business, real estate holdings, and/or other substantial assets, you should consider having a prenuptial agreement, to clearly negotiate and identify – in writing – your respective rights with your spouse, prior to your marriage. While a prenuptial agreement and discussion of financial issues prior to marriage is unromantic, it is a necessity if you want to avoid serious misunderstandings after marriage, as well as disappointments in the event of a divorce. Benjamin Franklin once said, “Keep your eyes wide open before marriage, half shut afterwards.”

Even after marriage, if you have no prenuptial agreement, antenuptial agreements are another tool our firm may recommend, to avoid future litigation over assets and debts acquired during marriage.