Divorce Myth #3: “We don’t have any community property because all of our accounts are separate.”

Written by on January 26, 2021 in Uncategorized

Welcome back to our Divorce Myth blog series – where we discuss (and debunk) some of the more popular divorce myths that exist out there.  Our third contender in this series is when a married person believes that they don’t own any community property with their spouse because they don’t have any joint bank accounts. 

California Family Code Section 760 states, “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” 

In layman’s terms, this means, that when you get married, the property that you acquire in California is considered community property unless there are specific exceptions (some of which will be discussed below).  As an example, the income that you earn from your employer becomes community property as soon as you get married.   When you deposit that income into your bank account (even if that bank account is in your name only), you are creating a community property interest in your bank account.  Therefore, you have community property.  This does not necessarily mean your entire bank account becomes community property, but only that you have deposited community property funds into this account.

Of course, there are exceptions to this rule.  First, if you have a prenuptial agreement or postnuptial agreement, your prenuptial or postnuptial agreement should dictate whether your asset is community or separate property.  Second, California Family Code Section 770 sets forth what is considered the separate property of a married person.  Included in that list are gifts and inheritance given to one spouse.  California considers gifts and inheritance to be the separate property of the person who received it even if the person receiving it is married.   Of course, the recipient of the gift/inheritance should be very careful and consult with an attorney prior to depositing the gift/inheritance in a bank account so that they don’t inadvertently commingle (“mix”) their separate property with community property making it difficult (or, in some cases, impossible) to identify and separate your separate property in the event of a divorce.  The assets considered to be the separate property of a married person are listed here

Therefore, and unless a specific exception applies, most married people do own community property – even if they don’t own a joint bank account.

If you have any questions on community or separate property, please feel free to contact us.

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