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What exactly is community property?

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Divorcing parties commonly want to know what they will be able to keep after a divorce. Pop culture news may give divorcees a false sense of entitlement (essentially that they automatically get "half" of the marital estate). While that may be true to a certain extent, property division is better understood in the following terms: community property and separate property.

Community Property

This means that all property acquired through labor or skill during the marriage is generally presumed to be community property. Since the law recognizes that both spouses make contributions to the marriage, they are equally entitled to the assets and property they accumulate.

If only one spouse was employed during the marriage, or if one spouse was essentially the "breadwinner", the community designation still applies. Community property also extend to business interests and retirement benefits earned during the union.

Separate Property

Assets acquired prior to, and after, the marriage are considered separate property. Common assets include those received by gift or inheritance (even if received during the marriage). Separate property is not part of the marital estate, so it is not divided.

Distinguishing between separate and community property may be difficult, especially in situations where they are commingled to achieve a mutual purpose.

A classic example is when a spouse's inheritance is used to purchase a family home or is used to finance a family owned business, it may be difficult to clearly determine the separate property interest, especially subsequent modifications that may increase (or decrease) the property's value.

Because of this, it is prudent to have an experienced family law attorney guide divorcees through the process of property division.

Source: State Bar of California, How will our property be divided in divorce

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