Community property refers to a family law term that is sometimes used in cases that involve divorce or legal separation. More specifically, the term community property refers to any property or assets that a couple obtains together over the course of their marriage. During proceedings, the court will divide property according to the type of property distribution methods as required by that specific state.
There are only a few states that follow community property standards, including California. Under such standards, the couple’s property will generally be split evenly between the two. Some exceptions include:
- Any property owned by one spouse prior to the marriage;
- Any property obtained by one spouse after the divorce or separation, that is not acquired through the use of community property, such as income; and,
- Any property given to one spouse by a third party during the marriage, such as by gift or inheritance.
Generally speaking, you do not need spousal consent to sell property. It could be possible for one spouse to sell community property without the other spouse’s consent under specific circumstances. Such circumstances include:
- The proposed transaction is in the best interest of both parties involved, and consent has been refused for a valid, legitimate reason; or,
- The spouse cannot consent to the sale because of a physical or mental impairment.
An example of this would be if one spouse wanted to sell a house without consent from the other spouse. They would need to prove that the transaction is for the best of both parties, or that their spouse cannot consent due to impairment.
What Does “Best Interests of Both Spouses” Mean? What Does “Refused without Good Reason’ Mean?
What constitutes the best interests of both spouses will vary significantly according to each specific case. In this context, community is used to refer to the couple. An example of a transaction that could be in the best interests of both spouses would be that the spouses have a high interest community debt, and possess assets that could be sold or mortgaged at a lower interest rate. Another example of such a scenario would be that the spouses need money in order to pay for important community needs. This would include home repairs or a child’s medical expenses.
Again, a spouse may sell community property without the other spouse’s consent if the spouse refused to consent without good reason. An example of this would be if the objecting spouse is doing so simply because they are angry. Another example would be if a spouse refuses to explain why they are refusing to provide consent.
What Can I Do If My Spouse Is Trying to Force Me to Sell a Community Property in California?
It is important to remember that a spouse cannot force the other spouse to sell community property, except by a court order. This also applies to separate property. If one spouse attempts to do so, the other spouse may argue in court that any document signed was done out of coercion. Coercion means that the documents are not legally valid nor are they enforceable.
If your spouse is attempting to force you to sell community property, whether during a divorce proceeding or not, you may be able to get a court to grant you an injunction to prevent them from doing so. In short, an injunction is a court order that orders a party to take a specific action or refrain from doing a specific action.
In the case of a spouse trying to force the other spouse from selling community property, a typical injunction would be getting the court to order that the community property assets be preserved until there is an agreement as to the division of the marital estate. If no agreement as to the division of the marital estate can be reached, the court will typically order a “just and right” division of the marital estate. Typically, such a division of the marital estate occurs during divorce proceedings.
If you and your spouse are going through divorce proceedings, there are typically local rules of court that will prevent your spouse from getting rid of communal property prior to an executed divorce decree or agreement regarding property division. One such local rule is that both spouses preserve and maintain the community property throughout the divorce process. Common examples of community property that will need to be discussed in a division of property agreement include:
- The Marital Home: It is not important who purchased the home or whether one spouse owned the home prior to the marriage. In the case of the marital home, both spouses have an equal community property interest in the value of the home. For example, if the marital home is valued at $300,000.00 each spouse would have a property interest of $150,000.00 in the home;
- Motor Vehicles: Once again, if the vehicle was obtained prior to the marriage, the vehicle may be considered to be separate property of that individual. Just because a vehicle is used as a family vehicle or by one spouse, does not mean the separate property is transformed into community property. However, a court will look at such facts when making a just and right division of the marital estate and community property;
- Bank Accounts: Many persons wrongly believe that because their income goes into a separate account, instead of a joint account, that such money is separate property. However, all income earned during marriage is considered to be community property, regardless of the account it is maintained in;
- Retirement: It is important to note that all retirement acquired during marriage is considered community property. This includes military retirement that is accumulated during the marriage. If either you or your spouse is in the military it is important to seek out the assistance of a qualified military divorce attorney, as there are special rules that come into play regarding calculating military child support or the division of military retirement; and
- Other Property: Other property may include furniture, electronics, jewelry, etc.
Typically, the spouse wishing to dispose of the community property will have to seek permission of the court to sell community property. Once again, the most common piece of community property that one spouse may wish to sell is the marital home. However, the other spouse may argue that they wish to keep the marital home, and “buy-out” the other party’s property interest in the residence. Another common thing that occurs when dividing community property is that one spouse may offer to not seek the other spouse’s retirement income or other property, in exchange for keeping the residence.
Should I Contact a Lawyer for Help with Community Property Issues?
If you are divorcing in California and need assistance in dividing property, it is important to consult with a skilled and knowledgeable California lawyer. It would be most helpful to retain a California family law lawyer, as they will be most aware of what local laws apply to your specific case.
An experienced California family law attorney will help you determine what is considered to be community property in your specific case. Additionally, an experienced attorney will be able to help you reach an equitable agreement as to the division of the community property in your case. They can also represent your interest in court, should you be unable to reach an agreement with your spouse as to division of the community property.