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Exceptions to the Community Property Presumption Upon Divorce

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How is Property Distributed in a Divorce?

When a couple gets divorced, their property will have to be split up before the divorce can be finalized. Each state has laws about how property should be distributed in a divorce. The distribution of property will depend whether the asset is viewed as community property or separate property.

What is Community Property?

Community property is any asset that both spouses own together and have an equal interest in. If a state recognizes the community property presumption, it is presumed that all assets acquired during marriage are community property.

However, there are several exceptions to the community property presumption. An asset will be considered the separate property of one spouse if it was:

  • Acquired before marriage;
  • Given to a spouse as a gift;
  • Received as an inheritance;
  • Purchased with one spouse's separate money; and/or
  • Acquired while living separate and apart.

What is Separate Property?

Separate property is any property that one spouse owns individually, but the other spouse does not have an interest in. For example, separate property can include:

  • Money;
  • Gifts; and/or
  • Property acquired while the spouses are living separate and apart


Money is considered separate only if it was acquired through one of the community property exceptions and the other spouse has no access to the money. However, if money that was once separate property is put into a bank account that both spouses have access to, it is no longer separate property and instead will be viewed as community property.


Property will be considered a gift only if it is clear from the actions of the person giving the property that they intended to give a gift to that particular person. A gift can be something that was given to one spouse by the other, or something given to a spouse from someone else.

Living Separate and Apart

Any property a spouse gets after the couple is living “separate and apart” will be viewed as separate property. In order to be considered living separate and apart, one spouse must have made clear to the other that he or she had no intention of returning to the marriage, and generally the spouses must actually be living in different places. If the couple is still living in the same house, it may be difficult to prove they are living separate and apart, but some states may still recognize this.

Should I Consult an Attorney Regarding the Status of My Property in a Divorce?

A divorce lawyer can advise you about your state’s laws regarding marital property, and help you determine the status of your property. If you have any assets and are contemplating divorce, you should contact an attorney to find out what type of ownership you have in those assets.

Photo of page author Ashley Folk

, LegalMatch Legal Writer

Last Modified: 07-23-2018 07:39 PM PDT

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