How do you know if an asset is community or separate?

There are a number of presumptions that help us. Presumptions are a feature of law that if you prove underlying facts you get the benefit of presumed facts.

In California and Nevada there are presumptions of title. If property is held and titled by a husband and wife as community property, it is presumed that that property is community in nature. A broader presumption goes to the time of acquisition, not title, but time. If property is acquired by a husband or a wife during the marriage or during the time of the community, then by the time of acquisition it’s presumed to be community.

In other words let’s assume that a husband earns a paycheck during marriage. Because he acquires that compensation during the time of marriage the fact that it is acquired during the date of marriage and the end of the community, whether it separation or divorce gives rise to the presumption that it’s community in nature. So, presumptions help us a lot in determining whether something is community or separate. Time of acquisition in title would be the most common.

Typically the party who has the claim before the court, that property is either community or separate will have the burden of proof. They will need to convince the court to a preponderance of the evidence, 50.1% just more likely than not that the property is of the character that they advocate. So, they have the burden of presenting evidence, and presumptions help us.

And so too does a process called tracing, where we can go back and we can follow the flow of property, the flow of cash that was used to acquire property and we can see where that property or money came from and what the original character of that would be. Then we can see whether the marital partners have during the course of the marriage done something to alter that original character. So tracing along with presumptions is very, very helpful in resolving those kinds of disputes.

Leslie Shaw practices family law in both California and Nevada, and has been involved in close to 1,000 family law matters largely involving litigation throughout his 40 year career. He is also a Certified Family Law Attorney, a status granted by the California Board of Legal Specialization.