1. My spouse inherited money during the marriage. Am I
entitled to half in the divorce?
Generally, no. Property owned before marriage, or acquired
by gift, bequest, devise or descent, including rents, issues and profits thereof, is
separate property and therefore not part of the division of community property.
2. My spouse and I kept separate bank accounts during
the marriage. Are our earnings then, separate property?
No. Most property acquired during marriage, including
earnings from employment, is community property. Even if one spouse spends his earnings
and the other spouse saves money, at the time of a divorce, those savings would be
community property and subject to division. The treatment of earnings as community
property could be changed if there is a valid written Premarital or Post Marital
agreement. Such agreements are subject to special rules and scrutiny.
3. When we purchased our home, my spouse signed a
Quitclaim Deed. Is the house my separate property?
Not necessarily. Under California law, spouses occupy a
confidential relationship with each other and are subject to the general rules governing
fiduciary relationships. Whenever spouses enter into an agreement in which one party gains
an advantage, in a divorce, the advantaged party bears the burden of demonstrating that
the agreement was not obtained through undue influence. Determining whether one spouse
gained an advantage over the other spouse, or if both spouses benefited from the
transaction, is dependent upon the facts of each particular transaction. Determining
whether one spouse has taken advantage of the other or exercised undue influence will
depend upon the facts of each case and each transaction. If the Court finds that the
transaction was the result of undue influence, it can be set aside or disregarded in the
divorce. Even if a particular property is deemed to be one spouse’s separate
property, the community may still have a partial interest in the property if community
funds are used to pay the mortgage or improve the property.
4. My spouse made a gift to me. Is this enforceable?
Transactions where the title or characterization of
property are changed are called transmutations. This can include transactions where one
party is converting or gifting community property to separate, or separate to community.
Generally, the law requires that such transmutations must be in writing. The writing must
evidence an intent to transmute or change the character of the asset, and must be
consented to or accepted by the spouse whose interest is adversely affected. A
transmutation of real property is only effective against third parties if the notice is
recorded. There is an exception to this writing requirement for gifts from one spouse to
another of "clothing, wearing apparel, jewelry, or other tangible articles of a
personal nature" used solely by the spouse to whom the gift is made and not
substantial in value, taking into account the circumstances of the marriage. Other than
this narrow exception, transmutations must be in writing after January 1, 1985. Disputes
can arise in determining whether a particular document meets the requirements to establish
a binding transmutation. This issue frequently comes up in the context of estate planning
documents and beneficiary designation forms.
5. I worked 30 years to earn my government pension. Are
my pension benefits my separate property?
Pension benefits earned over many years of employment can
be quite valuable. There are many special rules governing the division of both private and
government pension benefits. Pension benefits earned during the marriage are generally
treated as community property. While not unlimited, the Family Court has broad discretion
to order the division of pension benefits, or the right to receive pension benefits in the
future when the earning spouse retires or, in some cases, even before retirement.
Don’t overlook, or underestimate, the value and importance of pension benefits in a
divorce.
