Community property law is a magical concept. Let’s say your pay period ends on Friday and the next day you get married. If you received your paycheck at the end of the day Friday, it’s 100% yours - your separate property. Let’s say instead you receive it on Monday, after you’ve been married two days. Still 100% yours, because the characterization of property depends on the date of acquisition, and you earned the money before Saturday’s wedding.
Now how about the money you’ll get paid in a week for the work you did Monday? You did the work while you were married, so it’s community property. It’s not 100% yours any more, even though your name is still the only name on the paycheck. As community property, it belongs 50% to you and 50% to your new spouse.
All property acquired during marriage whether by both spouses or only one of them is presumed to be community property. This presumption continues until your date of separation, the date when it’s clear that you’re going to get divorced. A common way to overcome the community property presumption is to show that you received the property in question as a gift or an inheritance. This sounds easy, but it may not be in practice.
One Christmas ten years ago while you were still blissfully married, your rich but aging Aunt Matilda left her priceless Picasso under your tree. You love Picasso, but your spouse loves Pollack. Nevertheless, Aunt Matilida, being a tactful person, was somewhat vague about whether it was gift to you alone or you and your spouse jointly. Now you’re getting divorced, and Aunt Matilda has long since passed to her eternal reward.
In the meantime the Picasso has been hanging on the living room wall, and you and your spouse always referred to it as “our” Picasso when visitors came. Who gets the Picasso? Is it community property or your separate property? Your spouse says community. You claim that Aunt Matilda told you she intended it to be a gift to you, so it’s your separate property.
Your spouse has the community property presumption on her side. She also has a parade of friends and neighbors who will say that you never called the Picasso “yours,” only “ours.” Aunt Matilda seems to have left no record of her intentions. You’re the Picasso lover, but Aunt Matilda isn’t around to confirm your story. Your spouse probably wins this one..
But we might ask if you kept family Christmas cards, and you did. Lo and behold, we find the one Matilda gave you that Christmas, and it says, “The Picasso is yours. I’m still looking for the right Pollack for your partner.” You paid so little attention to the card that you didn’t notice or remember it, but the card convinces the judge that you’re telling the truth. The Picasso is your separate property. Too bad for your spouse that Matilda never found the right Pollack.
If your Uncle LeRoy ever leaves a painting under the Christmas tree by your favorite artist, and he isn’t crystal clear about who’s getting it, forget tact. Make sure he signs the back with your name, and your name only, saying it’s a gift to you.
San Diego Divorce Attorney Stanley D. Prowse welcomes your legal inquiries.