Many Californians get married without understanding the contract they are entering into. Here are the basics of California Family Law:
Community Property: Anything acquired during marriage is presumed to be community property. This means that the parties’ earnings during marriage are community property (owned one-half by each spouse). Community property is equally divided in the event of a divorce.
Separate Property: Any property acquired before marriage or acquired during marriage by gift or inheritance, is separate property (if documentation exists to prove it is separate property). Separate property is confirmed to the owner at divorce. If one party claims that an asset is separate property, it is that party’s burden to prove it – so records should be saved!
Even if property is a spouse’s separate property, it can be used to pay spousal support, child support, and attorneys fees for the other spouse.
If a separate property asset (e.g. house or business) increases in value during marriage, the community likely has an interest in that asset so that it will be valued and divided in the event of a divorce.
If one spouse has separate property going into a marriage, it can remain separate property by always keeping it in a separate account and never adding any community funds (e.g. income from employment), or the other spouse’s name to the account. All separate property assets should be documented accordingly (e.g. print annual statements and store them in a safe place).
Our California Courts have a helpful summary here: Property and Debt in a Divorce or Legal Separation.
Spousal Support: Spouses have a duty to support each other during marriage. At divorce, if there is a disparity in income, the person who makes more money will likely need to pay spousal support to help the other spouse meet his or her needs. Keep in mind that both spouses have a duty to put forth a good faith effort to become self-supporting. If a spouse has not worked in many years, it will be difficult for that person to become self-supporting, and the other spouse should be prepared to pay spousal support.
Individuals about to marry who don’t like the rules and want to opt out of them should talk to a family law attorney about a prenuptial agreement. Individuals who are already married may want to consider a post-nuptial agreement.
There are exceptions and nuances for every situation so those wishing to protect separate property should speak with an experienced family law attorney to know how the law applies.