Until Death Do Us Part

The month of February fills most of us with thoughts of love for our spouse, as the 14th is Valentine’s Day. Well, maybe. While it is true that February brings us Valentine’s Day, with it’s flowers, chocolate and jewelry, it does not change the fact that in 2003 the U.S. Census Bureau reported that 50% of the nearly 6,400 marriages that take place each day in the United States end in divorce. With this astounding statistic, it should come as no surprise that when a marriage is heading toward dissolution that a spouse will ask, “What is mine?”

California is a community property state, which means that all property, real or personal, acquired by a married person during the marriage while domiciled in California belongs equally to each spouse. Upon the dissolution of a marriage all community property will be divided equally between the spouses. The exception to this rule is if a spouse can establish a separate property right.

Separate property can be established several ways including, but not limited to, an enforceable agreement, by evidence that the property was acquired before the date of marriage, after separation or acquired during the marriage by gift or inheritance. It must also be established that property acquired by such means was never commingled with community property and its character as separate property never changed.

Therefore, when a person gives their spouse a gift for Valentine’s Day, the likely answer upon dissolution is that the gift is the separate property of the spouse to whom it was given. The reason for this result is that even though the gift was purchased with income earned during the marriage the money was used to purchase a gift, which as a result falls into the exception to the rule of community property.

Marlo Van Oorschot, Esq. is a Family Law Attorney and Mediator in West Los Angeles. Ms. Van Oorschot can be contacted at (310) 820-3414; or mvo@mvolaw.com. For further information on litigation and mediation of a family law matter, please visit www.mvolaw.com.