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Dividing Property In Divorce

Divorce law stipulates that all marital property is to be divided equitably between the spouses. However, equitably does not mean equally. The court takes many considerations into account when determining how to divide property. The income of each spouse and their ability to maintain their standard of living after the divorce is just the starting point. Listed below are the main factors the court looks at when determining how to divide property.

Community Property

Community property may include anything from real estate to motor vehicles to computers and other consumer electronics. Things you purchased specifically for yourself during your marriage will most likely be considered community property during the divorce.

  • Real estate, savings or personal property that you, your spouse or both, acquire in California (or another state) during marriage, while you and your spouse are living in California
  • Includes the part of property bought with community funds, if part was bought with community funds and part with separate funds that you and your spouse agreed to convert from separate to community property through an agreement valid under California law
  • Property that can’t be identified as separate property

Community Income

  • Includes salaries, wages or pay for services of you, or your spouse that is earned during your marriage while living in California
  • ​Income from community property

Any monetary income you earned from any source while married is considered community income. Even if your spouse earned considerably more money than you, your income is still part of community income.

Real Estate

For most couples, their home is often the most valuable asset owned by the marital community. Sometimes one spouse may claim the house is all theirs. Usually, that’s just not true.


Cash assets include savings and investment accounts that you or your spouse, or both of you, has accumulated during your marriage. It also includes 401(k) plans, IRAs and pension benefits even if held only in one spouse’s name. Learn more at our division of retirements plans page.   

Personal Property

Personal property includes household appliances, furniture, cars, boats, mobile homes, collectibles, antiques or works of art, or your dog who has been with you through good times and bad.

What’s Separate Property? What Is The Date Of Separation?

The date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: (1) You told your spouse that you intend to end the marriage. (2) Your conduct is consistent with your intent to end the marriage.

Can We Still Live In The Same House?

Yes, and many people do, because of the price of real estate in California. But you must tell your spouse you intend to divorce. And you cannot mislead them that you intend to stay together as a married couple. Consistency is the keyword here.

Here’s What The Family Code Says

CA Family Code 770(a): “Separate property of a married person includes all of the following:”

  1.  All property owned by the person before marriage.
  2.  All property acquired by the person after marriage by gift, bequest, devise or descent.​
  3. The rents, issues and profits of the property described in this section.

California Family Code 771(a): “The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, after the date of separation of the spouses, are the separate property of the spouse.”

What Is Separate Property?

The concept of separate property is often not as straightforward as it seems once you sit down and start looking at specific types of property. When you factor in the fact that some things can begin as separate property and become marital property under certain conditions, the distinctions become even less clear. For example, a house owned by one spouse when they entered the marriage is initially considered separate property. If the house is upgraded and goes up in value during the marriage, it becomes marital property. Listed below are examples of common types of separate property.

  • Property that you or your spouse owned separately before your marriage
  • Property either of you received as a gift or inherited during your marriage
  • Property bought with separate funds, or exchanged for separate property, during your marriage
  • Property that you and your spouse agreed to convert from community to separate property through an agreement valid under state law
  • The part of property bought with separate funds, if part was bought with community funds and part with separate funds
  • Your kids’ stuff if they live with you after the date of separation

If you are confused about whether specific items qualify as separate property, we can help.

Contact The Divorce Legal Team At Rita Holder Law

To learn more about property division in your divorce, contact Rita Holder Law at 925-401-7885 or by using our online contact form. We offer a free initial consultation to discuss the details of your divorce.