Property and Divorce in California: Has My Separate Property Become Community Property During Marriage?

When beginning divorce proceedings, questions often arise regarding assets which either spouse believes to be their separate property, for example, assets held prior to the marriage or inherited during the marriage.

Changing the characterization of property during marriage from separate to community property is often referred to as “The Character of Transmutation”.

Under California law, there are two major questions in determining if a change in the character of property occurred by transmutation:

1) Is there a writing that meets the requirements?

2) Was the writing, which constitutes an agreement, voluntarily entered into by the adversely affected spouse? (The spouse who stood to suffer a loss in the transmutation of the separate property)

How to determine whether there is a writing that meets the requirements:

In considering this issue, it would be wise to look at California Family Law Code Sections 850 to 853 (http://www.leginfo.ca.gov). These sections provide, in part, that all transmutations must be in writing and contain an express declaration of a transmutation. Look particularly at Section 852(a) which requires a transmutation must be in writing and contain an express declaration of an intent to transfer by the spouse whose property is adversely affected — this means by the spouse whose property is being transmuted in a way that is adverse to them, such as from separate to community property.

It is important to analyze the requirement of express declarations and whether your case, the facts, and the documents meet this requirement.

The surrounding facts that are not contained in the written document causing the transmutation may not be considered as proof of the transmutation.

Was the writing, which constitutes an agreement, voluntarily entered into by the adversely affected spouse?

Even if there is a transmutation of your property which has caused it to be considered community even though it was formally separate property, the Court will determine whether or not the written agreement which caused the transmutation was voluntarily entered into by the adversely affected spouse. This means that the Court could make a finding that even though the writing causing the transmutation meets all of the requirements, the facts surrounding the execution of those documents do not support that it was voluntarily entered into by the adversely affected spouse, and therefore is invalid.

This issue can be a very complicated issue; if you are concerned about transmutation of property or have other questions regarding property and divorce in California, you should consult with an attorney and review all of the facts and documents to determine how they apply to your case.

********** This post is intended to encourage discussion on this topic and does not constitute legal advice. All individuals who would like further information are advised to do additional research, obtain qualified legal advice and/or retain an attorney. **********