Foundations and the Community Property Presumption

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Cal. Fam. Code § 760

Fam. Code § 760

Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

Elemendid

Elements of § 760

Property is community property under § 760 when all three are true:

1. 1.Married person: The person who acquired the property was married, or in a registered domestic partnership, at the time.
2. 2.During the marriage: Acquisition happened after the wedding and before the date of separation (section 3).
3. 3.Domiciled in California: The acquiring spouse's domicile was California at acquisition: he or she lived there with the intent to remain.

Kõik vajalikud elemendid.

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Cal. Fam. Code § 770

Fam. 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.

Põhipunkt

California is a community property state: the time and manner of acquisition decide the character of an asset. Title alone does not decide character; joint title matters at divorce under § 2581 (chapter 2).

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Cal. Fam. Code § 125

Fam. Code § 125(a)

“Quasi-community property” means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways: (a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition.

Eksami näpunäide

Label every asset with one of three words: community, separate or quasi-community. Never write “marital”, “joint” or “his”. A missing label reads as a missed issue.

Põhimärkused

1. 1.§ 760: property acquired by a married person during marriage while domiciled in California is community property.
2. 2.§ 770(a): separate property is property owned before marriage, gifts and inheritances, and the rents and profits of separate property.
3. 3.§ 751: each spouse owns a present, existing, equal half of community property from the moment of acquisition.
4. 4.§ 125: quasi-community property is out-of-state property that would have been community property in California.
5. 5.Quasi-community property is treated as community property at divorce, at death and, for debts, under § 912.

Elemendid

Three events that end the economic community

Check each one against the facts and pick the earliest:

1. 1.Separation: A complete and final break in the marital relationship, shown by expressed intent and consistent conduct (§ 70).
2. 2.Death: The community ends at the moment of death; Probate Code §§ 100 to 101 then divide the property.
3. 3.Judgment: A judgment of dissolution ends the marriage. After a judgment of legal separation, earnings are separate property (§ 772).

Piisab ükskõik millisest.

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Cal. Fam. Code § 70

Fam. Code § 70(a)

“Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: (1) The spouse has expressed to the other spouse the intent to end the marriage. (2) The conduct of the spouse is consistent with the intent to end the marriage.

Juhtum

In re Marriage of Davis, (2015) 61 Cal.4th 846 (California Supreme Court 2015)

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Cal. Fam. Code § 771

Fam. 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.

Hüpoteetiline

The long goodbye

Eva marries Finn in 2012 in Fresno. In March 2025 Eva tells Finn, “I do not want to be married to you anymore.” Finn asks her to think about it. They continue to share a bedroom, and in June 2025 the family takes a two-week vacation together. In August 2025 Eva opens a bank account in her own name and begins depositing her salary there. In September 2025 she moves into a rented apartment and stops sharing meals or finances with Finn. In November 2025 Eva receives $20,000 in employer stock for work she performed from January to October of that year. Finn files for divorce in January 2026 and claims the stock as community property.

When did the economic community end, and what is the character of the stock?

Põhipunkt

The community ends at separation, not at the divorce judgment. Property bought with post-separation earnings, in the months or years before the judgment, is separate property.

Eksami näpunäide

Write the three dates in your first paragraph: the wedding, the date of separation, and the divorce or death. Then, for every asset, say which side of the separation date it falls on. Date of separation was tested on 13 of the last 50 exams.

Põhimärkused

1. 1.The economic community starts at a valid marriage and ends at separation, death or judgment, whichever is first.
2. 2.§ 70: separation needs an expressed intent to end the marriage plus conduct consistent with that intent.
3. 3.§ 70 abrogates Davis; spouses may be separated while living in the same home.
4. 4.§ 771: earnings after the date of separation are separate property; ask when the work was done, not when paid.

Elemendid

Three routes to rebut the presumption

The separate property claimant must fit the asset into one of these routes:

1. 1.Tracing: Prove that the asset was bought with separate funds, by direct tracing or by exhaustion of community funds.
2. 2.Agreement: Show a valid premarital agreement (§§ 1600 to 1617) or a written transmutation (§ 852) that makes the asset separate.
3. 3.Statute: Point to a statute that makes the asset separate, such as § 770 (gifts, inheritance) or § 771 (post-separation earnings).

Piisab ükskõik millisest.

Mnemooniline

Run all three for every possibly separate asset; if none applies, the asset stays community.

Juhtum

See v. See, (1966) 64 Cal.2d 778 (California Supreme Court 1966)

Juhtum

In re Marriage of Valli, (2014) 58 Cal.4th 1396 (California Supreme Court 2014)

Hüpoteetiline

The house in his name

Grace and Henry marry in 2016 and live in San Diego. Henry deposits his dentist salary into a checking account that has been in his name alone since before the marriage. The account had a zero balance on the wedding day. In 2020 Henry uses $150,000 from that account as the down payment on a house. The deed names “Henry, a married man, as his sole and separate property.” Grace never contributed money to the account. In 2026 the couple separates, and Henry claims the house as his separate property because of the deed and because Grace contributed nothing.

Is the house community property or Henry’s separate property?

Põhipunkt

Ask three questions for every asset: When was it acquired? Where did the money come from? Is there a writing that changes the character?

Eksami näpunäide

Write the presumption sentence for every asset before you analyze it. For example: “Because the house was acquired during marriage, it is presumed community property, and Henry must prove otherwise.” Then test tracing, agreement and statute. Tested on 26 of the last 50 exams.

Põhimärkused

1. 1.Property acquired during marriage is presumed community; the separate property claimant proves otherwise by a preponderance.
2. 2.Three rebuttal routes: tracing to a separate source, a valid agreement or transmutation, or a statute (T-A-S).
3. 3.Commingling does not change character, but the claimant must trace asset by asset (See v. See).
4. 4.Title in one spouse’s name alone does not rebut the presumption; § 662 does not apply where it conflicts with the transmutation statutes (Valli).
5. 5.Contribution is irrelevant: the non-earning spouse owns half of community earnings from the start.

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Cal. Fam. Code § 297.5

Fam. Code § 297.5(a)

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

Juhtum

Ceja v. Rudolph & Sletten, Inc., (2013) 56 Cal.4th 1113 (California Supreme Court 2013)

Põhipunkt

At death a putative spouse is treated as a surviving spouse (Estate of Leslie). If only one party acted in good faith, that party still receives the protection of § 2251.

Juhtum

Marvin v. Marvin, (1976) 18 Cal.3d 660 (California Supreme Court 1976)

Märkus

After July 2028

The NextGen exam replaces the current format from July 2028. It adds family law under general U.S. principles, but it does not test California community property rules. A California component for July 2029 is proposed but not approved. Candidates sitting in February 2027, July 2027 or February 2028 must know this subject in full.

Eksami näpunäide

If the facts show a defect in the marriage, run three tests in this order: valid marriage under § 300, putative spouse under § 2251, then Marvin contract. Stop at the first one that fits. Putative spouse: 3 of the last 50 exams; Marvin: 2.

Põhimärkused

1. 1.Only spouses and registered domestic partners acquire community property; § 297.5 makes partners identical to spouses.
2. 2.A putative spouse honestly believed the void or voidable marriage was valid; the test is subjective (Ceja).
3. 3.Quasi-marital property is divided like community property (§ 2251); good faith ends at knowledge of the defect.
4. 4.Unmarried cohabitants have no community property; Marvin allows express or implied contracts and equitable remedies.

Elemendid

The Community Property checklist

Write your answer in this order.

1. 1.Opening: California is a community property state. State the three dates: marriage, separation, and divorce or death.
2. 2.Status: Confirm the relationship: valid marriage, registered domestic partnership, putative spouse or cohabitants.
3. 3.Per asset: presumption: Acquired during marriage? Then presumed community; the separate property claimant must prove otherwise.
4. 4.Per asset: source: Earnings, gift, inheritance, premarital property, or out-of-state acquisition (quasi-community).
5. 5.Per asset: title and agreement: Joint title (§ 2581), premarital agreement, or written transmutation (§ 852).
6. 6.Per asset: tracing and apportionment: Commingled funds, separate business with community labor, community payments on a separate asset.
7. 7.Per asset: conclusion: State the character and each spouse’s share, including any reimbursement.
8. 8.The call: Management, creditors, division at divorce (§ 2550), or distribution at death (Prob. Code §§ 100 to 101).

Kõik vajalikud elemendid.

Elemendid

The four-step characterization paragraph

For every asset, write these four steps in order. Then apply the call to the conclusion.

1. 1.Step 1: The presumption that follows from the date of acquisition.
2. 2.Step 2: The source of the funds or labor.
3. 3.Step 3: The effect of title, agreement or tracing.
4. 4.Step 4: The conclusion, with each spouse’s share.

Kõik vajalikud elemendid.

IRAC

probleem

Whether [the asset] is community property, separate property or quasi-community property, and what share each spouse takes.

Reegel

Under Family Code § 760, property acquired by either spouse during marriage while domiciled in California is presumed community property. Under § 770, property owned before marriage or acquired by gift, bequest, devise or descent is separate property, as are its rents and profits. The spouse claiming separate property must rebut the presumption by a preponderance of the evidence, by tracing to a separate source, by a valid agreement or transmutation, or by statute. Title in one spouse’s name alone does not rebut the presumption (Valli).

Rakendus

Here, [the asset] was acquired on [date], which is [during / before / after] the economic community that ran from [marriage date] to [separation or death date]. So it is presumed [community / separate]. The funds came from [salary during marriage / an inheritance / a premarital account / earnings while domiciled in another state]. [Spouse] will argue that [title / a writing / tracing] makes it separate. However, [the deed is only a statement of title and there is no express written declaration under § 852 / the records do not trace the funds / no statute applies]. [Other spouse] will respond that [contribution is irrelevant under § 751 / the funds were commingled and community expenses are presumed paid from community funds].

Järeldus

Therefore, [the asset] is [community / separate / quasi-community] property, and at [divorce / death] [spouse] takes [one-half / all / nothing] of it.

Hüpoteetiline

A model asset paragraph

Mia and Noah married in 2018. In 2021 Noah’s mother died and left him $100,000. Noah put the money in a new account in his own name and never added to it. In 2026 the couple separated. Noah claims the account.

Write the asset paragraph for the account in the house form.

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Cal. Fam. Code § 2550

Fam. Code § 2550

Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall […] divide the community estate of the parties equally.

Põhipunkt

Every call reduces to one question: what is the character of the asset? Characterize first, then apply the rule the call names.

Eksami näpunäide

Argue both sides for every contested asset, then conclude in one sentence. Graders give points for the separate property argument even when you reject it. Never leave an asset without a conclusion; a guessed conclusion scores, a blank does not.

Põhimärkused

1. 1.Open with the three dates and the status of the relationship; then give each asset its own heading.
2. 2.Four steps per asset: presumption, source, title or agreement or tracing, conclusion with shares.
3. 3.Divorce: § 2550 equal division of the community estate. Death: Prob. Code § 100 halves.
4. 4.Use California vocabulary only: community, separate, quasi-community, equal division.
5. 5.About ten minutes per asset; a complete short paragraph for every asset beats a long one for some.

Põhipunkt

A practice question is only useful if you write the rule and the reason before you read the options. Guessing from the options trains recognition; the essay day needs recall.

Praktika · MBE

Praktika · MBE

Praktika · MBE

Praktika · MBE

Praktika · MBE

Põhimärkused

Chapter summary

1. 1.Three boxes: community (§ 760), separate (§ 770) and quasi-community (§ 125). Time and manner of acquisition decide the box.
2. 2.Title alone does not decide character; joint title matters at divorce under § 2581 (chapter 2).
3. 3.The economic community ends at separation (§ 70), death or judgment; later earnings are separate (§ 771), judged by when the work was done.
4. 4.Property acquired during marriage is presumed community; the separate property claimant rebuts by tracing, agreement or statute.
5. 5.Registered domestic partners are spouses (§ 297.5); putative spouses divide quasi-marital property (§ 2251); cohabitants have only Marvin contract rights.
6. 6.Per asset: presumption, source, title or agreement, conclusion. Then answer the call: divorce (§ 2550) or death (Prob. Code § 100).