The division of property in the matter of divorce has various subsets in the state of California.
California is a community property state. This means that both spouses have a 1⁄2 interest in the property acquired during the marriage. All property, real (i.e. land) or personal acquired during the marriage and prior to the date of separation is community.
Property obtained prior to the marriage, after the date of separation, or by gift, bequest, devise, or descent are separate property.
If separate property has been mixed with community property then the separate property needs to be traced, otherwise it will be divided as community property. There are several tracing methods, but a good places to start is to find records indicating the date, amount, and source of deposit or payments.
Date of Separation:
The date of separation is used to determine property interests. The length of the marriage is measured from the date of marriage to the date of separation. This is not the same as legal separation which is a cause of action. The “date of separation” indicates when the marriage was “over,” thus the end of community property.
The date of separation was been determined by a two (2) part analysis in which there was a “subjective test,” that date in one of the parties mind the marriage was over and an “objective test” that date in which there was a physical manifestation of separation (e.g sleeping in separate bedrooms). That date that both have been satisfied was considered the, “date of separation.”
Recently, on January 20, 2015, the California Supreme Court, In Re Marriage of Davis (2015) 61 Cal.4th 846, held that the parties also, “must be living under separate roofs” in order to trigger that date of separation.
However, the California Legislature passed SB 1255 which eliminates the “separate roofs” requirement. Effective January 1, 2017 the test is as follows:
- One of the spouses has expressed their intent to end the marriage.
- The conduct of that spouse is consistent with his or her intent to end the marriage.