How Can You Tell Community Property From Separate Property In A Divorce?

The nature of property, that is whether it is community property, separate property or a mix of the two (which is known as commingled property) can be one of the most complicated matters in a divorce.  I receive the question below a lot.

Q: I  owned a house before my marriage (or domestic partnership) and then sold it and used the proceeds as a down payment on another house after getting married .  Now, we’re getting divorced.  Is the house community property? 

Here is a good answer from the the California Courts website:

A: The down payment for this new house would be considered separate property (since the money came from selling a house that 1 person owned before the marriage or partnership). But, if the mortgage payments on the new house are made during the marriage or partnership using the earnings of either one of you, the equity (value) resulting from paying down the house loan is community property. The result is that the equity in the house is commingled.

What is community property?

According to California Family Code Section 760 community property is the default state of all property, whether real estate, like a house or  personal, like a car, wherever the property is physically situated, as long as it was acquired by a married person during the marriage while domiciled in this state.

Okay, then what is separate property?

Family Code Section 770 states that Separate property is anything you have that you owned before you were married.  Inheritances and gifts to one spouse. Separate property is also anything that you acquire after the date of  separation, including money you earn. This is one of the reasons why the date of separation is important in divorce.  It can determine whether certain property or debt is community or separate property.


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