Who gets what when a couple in California divorces?

On Behalf of | Apr 1, 2022 | Divorce |

When a couple exchanges their marital vows, they commit to sharing their lives with one another. For many this includes sharing finances and belongings, some things as small as pots and pans and some things as large as the family home. But when their marriage starts crumbling and divorce is looming, tension often rises about who gets what at the end of the day. Divorcing couples in California need to have a strong understanding of property division laws in the state, including what is marital property, what is separate property and what happens when property “commingles.”

Marital property versus separate property

Under California law, marital property is anything either spouse obtained during the course of the marriage, with a few exceptions for inheritances and gifts made to one spouse only. It does not matter which spouse earned the income, which spouse purchased the property or whose name is on the title to the property. Anything earned or purchased during the course of the marriage with marital assets is marital property. In the event of a divorce, each spouse has an equal ownership interest in marital property, and it will be divided as equally as possible between the spouses.

Separate property, on the other hand, is that which a spouse earned or obtained prior to marrying. This can include both assets and income. If a couple divorces, they each get to keep the separate property that was theirs before they married. The only exception is if the separate property “commingled” with marital property.


Commingling occurs when property that started off as separate gets so entwined with marital property that it is no longer discernable whether the once separate property is separate or marital. If this happens, the once-separate property converts to marital property. For example, if separate funds are placed in a joint bank account or if separate assets are used to pay for marital assets, this may be considered commingling. Thus, if a spouse has assets that they wish to keep separate while they are married, they must make sure the assets are not mixed into marital assets or given to their spouse.

Property division and divorce

Knowing what property of yours is separate and what is marital is essential if you are facing divorce. Since California is a community property state, marital property will be divided as evenly as possible, since both spouses can claim an ownership interest in all marital property. Thus, knowing what property is marital and what is separate is key to ensuring a fair outcome in the property division process.