Find the right lawyer now

Exceptions to the Community Property Presumption Upon Divorce

Find a Local Family Lawyer near You

In states that follow the community property system, community property is any asset that both spouses own together, and both have an equal interest in.  Separate property is any property that one spouse owns individually, and that the other spouse does not have an interest in.  

The presumption is that all assets acquired during marriage are community property.  However, there are several exceptions to the community property presumption.

What are some Exceptions to the Community Property Presumption?

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
  • acquired while living separate and apart

How Do I Know if Property Will Be Classified as a Gift?

Gifts can be property that was given to one spouse by the other, or property given to a spouse from anyone else.  It will only be considered a gift, however, if it is clear from the actions of the person giving the property that they intended to give a gift to that particular person.  If it is a gift, it will be separate property.

How Do I Know if I Purchased Property With Separate Money?

Money is considered separate only if it was acquired through one of the exceptions and the other spouse has no access to the money.  This money is separate if it is kept in a personal bank account that the other spouse cannot reach.  If money that was once separate property has been put into a bank account that both spouses have access to, it is no longer separate property and any items purchased with that money is community property.

How Do I Know Exactly When We Began Living Separate and Apart?

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 the spouses must actually be living in different places.  Anything earned or acquired after this point is separate property.

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

An attorney will be particularly helpful in advising you as to the status of your property, and can help a great deal in a divorce.  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 Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 06-28-2011 03:13 PM PDT

Law Library Disclaimer
  • No fee to present your case
  • Choose from lawyers in your area
  • A 100% confidential service
What is LegalMatch?

We've helped more than 4 million clients find the right lawyer – for free. Present your case online in minutes. LegalMatch matches you to pre-screened lawyers in your city or county based on the specifics of your case. Within 24 hours experienced local lawyers review it and evaluate if you have a solid case. If so, attorneys respond with an offer to represent you that includes a full attorney profile with details on their fee structure, background, and ratings by other LegalMatch users so you can decide if they're the right lawyer for you.