California Community Property: What Every Airman Should Know
By Capt. Benjamin Hernandez-Stern , 129th Rescue Wing Legal Office
/ Published February 05, 2011
MOFFETT FEDERAL AIRFIELD, Calif. -- California community property law hardly ever registers on an average Airman's life radar, but when faced with a death in the family or the strain of a divorce the complicated intricacies of community property law can loom over the head of an affected airman.
In the age of celebrity weddings and public divorces community property terms have become part of the daily news cycle, though these cases provide little insight to how the community property system applies in everyday life.
Generally, community property is a system whereby all property acquired during the marriage is divided evenly between each spouse upon divorce, legal separation or death. In California, when the property of a husband and wife needs to be divided it is separated into two categories: community property and separate property.
Community property will ordinarily include earnings of each spouse during marriage and any assets (including real estate) purchased with community funds.
Separate property includes all property that spouses owned before marriage or acquired after the date of separation. This can consist of property acquired by gift or inheritance and any property that a spouse may have earned before the marriage but actually received during the marriage.
Courts will presume all property acquired during marriage is community property; if a spouse wishes to claim an asset in question as separate property it is that person's burden to establish it as such.
The process by which a separating spouse can establish whether property was acquired separately or by the community is called "tracing." Figuring out the characterization of a particular asset isn't always straightforward.
Both spouses may agree that an inheritance from an uncle during marriage was to the wife alone. Inevitably through the passage of time, if inheritance records were lost the wife would be deprived the proof needed to show that the inheritance was in fact left to her alone.
Down payments and co-mingled bank accounts are also complex areas in the community property context and commonly require forensic accounting. If the separating spouse can't meet that burden, they may lose the battle to characterize the property as separate.
Additionally, how spouses own real estate, whether as community property, in joint tenancy, or in tenancy in common, also effect the division of community property. This and all previous material represent general legal principles not intended to provide specific guidance.
The law is continually changing. To better legally prepare for a death in the family or the strain of a divorce Airmen should ensure they understand enough to know when it is time to consult an attorney.
For more information about community property, contact the 129th Rescue Wing Judge Advocate's office for guidance on how to find a family law specialist in your area. The 129th JAG office is available during its legal assistance hours of 8:00-11:00 am on Sundays of drill.