Trevino Law, Inc.

A Family Law Firm Located in South Orange County

For a family law lawyer call:  949.716.2102

Contact a Family Law Lawyer
If you have a crises in your life, chances are, you need a divorce attorney . Whether it is child support , child custody , property division , or spousal support , Trevino Law can help you through. Trevino Law is dedicated to helping individuals through the legal process. If you are facing a family law issue, it is important to contact an attorney even before the petition is filed. 

Property Division

Community Property in California

Separate Property in Orange County

In California, community property is property acquired during the marriage that is not an inheritance or a gift.  Any property purchased with community property remains community property. Community property which produces income renders the income community property.   
Separate property in California is any property acquired before the marriage or after the date of separation or property that was received as a gift or an inheritance. Any property purchased with separate property remains separate property as long as only separate property is used to purchase or maintain the property.

Quasi-Community Property

Quasi-community property is any property purchased in another state which would be considered community property if it had been purchased in the state of California.  

Transfer of Property Between Spoues (Transmutations)

During the marriage, the parties can change the nature of the property by written agreement. California Family Law Code §§850-852 , allows a couple, by written agreement, to transfer or “transmute” community property to the separate property of either spouse or from the separate property to the community property. In legal jargon, this is referred to as transmutation. A transmutation is fulfilled when spouses transfer property between themselves during the marriage changing the character of the property. There are three types of transmutations:

  • The transfer of community property to the separate property of one of the spouses;
  • The transfer of separate property of one of the spouses to the community property of the spouses; and
  • The transfer of separate property of one of the spouses to the other spouse’s separate property.

The written agreement must contain the necessary language to transfer property. In addition to a written document, it is imperative that the adversely affected party sign the document willingly without coercion or duress. If it is not entered into freely, the document is irrelevant in a divorce and the property will revert back to its original ownership.    

Commingling Separate Property and Community Property

It is possible for parties to have commingled community property and separate property.  Depending on the type of property commingled, this may result in the community owning an interest in separate property or one spouse owning an interest in community property.  The best thing that spouses can do in a marriage is keep their separate property separate from their community property. 

Gifts Given During Marriage

In California, the court determines which spouse gets the gift--the one who gave it, the one who received it, or both. If a gift is awarded to either the receiving spouse or the giving spouse, that spouse keeps it in its entirety as his or her separate property, and there is no offset to the other spouse for the value of the gift. If it is community property, the value of the gift is awarded to each spouse equally. In most divorces, a gift is awarded to the spouse who received it.

To determine which spouse is awarded the gift, the court analyzes whether or not the gift is "substantial in value taking into account the circumstances of the marriage" ( California Family Code Section 852(c) ).  The closer it resembles the parties' station in life, the more likely that the courts will award it to the spouse that received it.

The court will also ask if the gift was used principally by the spouse that received the gift. If the was used by the receiving spouse, the court will be more likely to award it to the receiving spouse.