Money Acquired During the Marriage Is Community Property

Date of Separation Is Important For Determining What Is Community Property

Here is a question that I often receive:

Q: “I took out some money from our joint account a week (or a month or whatever)before I filed for divorce. I believe that money should not be considered in the property division because we were not ‘legally separated.’ Can my spouse’s attorney count that money as community property.”

A: If the money in the joint account was acquired during the marriage, it is generally community property (unless there is a prenuptial agreement to the contrary). The characterization of the money does not change based upon the date of withdrawal. Money acquired after the date of separation would be characterized as separate property. The date of separation is not necessarily the date that the filing was effectuated, but rather the date that there was a separation with no intent to reconcile. Community property money would be subject to an equitable division by agreement or after a trial on the issue. Separate property money would not be subject to equitable division.

This question brings up an important point–the date of separation is often disputed. One party claims it to be on day X and the other party claims it occurred on day Y. The reason is that the date of separation can influence what property is considered community property.

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