Community and Separate Property Attorney
Historical Facts of California Community Property Laws
California's community property system owes as much to Mexican and Spanish influences as does the English common law upon which most other American jurisprudence is based, particularly in the eastern states.
In the early 1800's Spanish law was more liberal in recognizing the rights of women to own and manage property than Anglo laws. The common law rules governing marital property were highly gender biased. Upon marriage a woman's legal identity merged with that of her husband. He took ownership of her personal property and had the exclusive right to manage her real property (which remained in her 'separate property' in name only). Special rules existed to protect her interests only upon the husband's death. There was no view that property acquired during marriage was "held in common" by both partners. Hence, upon divorce she acquired no interest in what had been acquired during the marriage.
Because of the influence of the Catholic Church, in Mexican California there was no such thing as legal divorce. The fact that women had rights as to property were more a reflection of concerns about what happened to children when the men died, than the rights of women as individuals. Community property in Mexican California was intended to insure that the wife received one-half of the husband's estate upon death in order to protect children. As a result, when California became a state there were a fair number of wealthy land-owning widows.
California was admitted to the Union in 1850. The Gold Rush that begin in 1848 (the 'forty-niners') brought large numbers of white men into the territory but few Anglo women. Men could make and lose fortunes in a day, leaving nothing for their families. This was not lost on the founding fathers as they fashion marital laws for the new state. If women and families were not protected from the unfortunate activities of an unlucky or dishonest husband the state did not have the resources to provide for their welfare.
At the Constitutional Convention, when very few white women were yet present in the territory, there was significant debate over the perceived issues of a right to female independence and that of protecting families. This hybrid established English common law as the basis of California jurisprudence, including its concept of separate property owned by the wife before marriage, while retaining the Spanish system that added the interest the wife acquired in what husbands built or developed during marriage.
This historical context may be helpful in understanding how community and separate property concepts have developed. Notable in this evolution is the fact that Husbands and Wives were treated differently in terms of gender rather than the same as individuals.
Gender bias for an against either sex will one day end. But the comment is fair that most divorce contests still involve conflicts over power (property and money) and nurture (children and support).
Separate Property in California
The idea of "separate property" was fixed when the California Constitution was adopted (as Article I, section 21).
California Family Code section 770 defines it as (1) all property owned by a person prior to marriage; (2) all property acquired after marriage by gift or inheritance; and (3) the rents, issues, and profits from such property.
FC section 771 expands separate property to include "the earnings and accumulations of a spouse"
"while living separate and apart from the other spouse". Pursuant to FC section 752 "except as otherwise provided by statute, neither husband nor wife has any interest in the separate property of the other."
Upon dissolution of marriage, a decree of legal separation, or upon dissolution of domestic partnerships the separate property of each party is confirmed to the party who establishes it to be their separate property.
Sometimes this is easy or not even in dispute. For instance, both spouses may admit or agree that the gift or inheritance from a grandmother during marriage was to the husband alone. But often there are no longer any records existing to prove a gift over an objection to that characterization by the other spouse. A complicated tracing may be required to follow the monies in and out of various property transactions. Worse, there may appear to have been a "transmutation" - a voluntary act that changes separate property into community typically through title and deed transfers.
Community Property
Family Code section 760 defines community property as "all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state...."
This is a critical presumption that also applies to domestic partnerships. Its effect is to place the burden of proof upon the spouse or partner who challenges the community property characterization to produce evidence which refutes that presumption, including evidence that traces the source of community property acquisitions to one's separate property downpayments and contributions.
This may be easy where monies have not been mixed and commingled in joint bank accounts at all, or for very long, as when monies used in buying or improving a property were transferred over shortly before the expenditures were made, or where the sales proceeds of - say a residence - are rolled directly into an escrow for the acquisition of a new home. It becomes more difficult to satisfy the 'separatizing' burden when separate property cash is deposited into and then sits in joint bank accounts into which earnings during marriage are also deposited, and the account is later used to fund the purchase of property or make mortgage payments.
In those situations a forensic accounting audit is almost always required.
Family Code section 2250 provides that except as otherwise divided or agreed, the community property is to be divided equally. However,
section 2601 allows courts to divide community property in any way that achieves a substantially equal division of the community estate.