Property Division FAQ

A divorce naturally raises important questions and concerns about property division between the spouses. At Kathleen K. Reeves & Associates, we have been serving clients throughout Alameda and Contra Costa Counties, including Pleasanton, Livermore and Dublin, in property division and other divorce-related matters for more than 30 years.

Here are some answers to common questions we receive in this area of family law:

What does "community property" mean?

California is a community property state, which means that all assets and debts acquired over the course of a marriage (but before the date of separation) belong equally to both spouses. As such, community property is divided equally at the time of a divorce. It is important to note that when it comes to community debt, it is irrelevant which spouse actually incurred the debt or whose benefit the debt was acquired for.

What does "separate property" mean?

Separate property is any property acquired prior to the marriage, as well as inheritances, gifts, or any rent or profit generated by a separate property asset, and more. Separate property is not subject to division at the time of divorce.

Is a gift between husband and wife considered community property or separate property?

It can be either. Under California law, whether a gift from one spouse to the other becomes separate property depends on the value of the gift in relation to the overall value of the marital estate. If the gift is significant compared to the overall value of the estate, it will likely be considered community properly. On the other hand, if the gift is relatively small as compared to the value of the marital estate, it will likely be considered separate property.

Are one spouse's student loans considered community debt?

Typically, student loans are considered to be the separate property of the borrowing spouse. However, depending on how these funds were used, they may be considered community debt in limited instances, such as when the student loan was used to help support the family.

What is "commingling?"

Commingling refers to when community property and separate property are mixed. In most instances, the court will consider it as community property. For example, if one spouse contributed to the upkeep or maintenance of a separate property, the separate property will likely be considered community property.

What will happen to our home?

This will vary depending on the family's specific situation. If there are children, the spouse who primarily raised them will typically get to keep the family home. If there are no children and the property was bought by one spouse's separate funds, that spouse can retain the home and ask the other spouse to leave. The courts vary on how to treat a marital home when there are no children. It is, however, illegal for a spouse to lock the other out. The only exception to this rule is in the case of domestic violence, when the victim spouse can lock out the abuser spouse.

How are retirement funds divided?

Like other types of marital assets, retirement benefits are community property if the funds were acquired over the course of the marriage. To divide these funds at the time of divorce, the community portion must be identified and divided equally. For example, if you started your job in 2005, got married in 2010, and got separated in 2015, your spouse would have a 50 percent interest in the retirement funds that accrued between 2010 (date of marriage) and 2015 (date of separation).

Contact Kathleen K. Reeves & Associates

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