For some reason, people rarely understand what “community property” really means: that all property and assets acquired and debt occurred between the Date of Marriage (DOM) and the Date of Separation (DOS – Physical Separation) is presumed under the law to be subject to an equal division as between spouses or domestic partners if either decides to end the relationship.
There are significant exceptions and qualifications to this rule. For instance, property owned prior to marriage, or acquired by gift or inheritance during marriage, is usually the separate property of the recipient.
However, separate property rarely maintains it original form, particularly in longer marriages. It is not uncommon for people to commingle (mix up) their separate property with that of the community or vice versa, or to inadvertently transmute (change the character of, typically by a change of record title) property from separate into community. Even when property is commingled or transmuted, important reimbursement rights under Family Code section 2640 remain available.
Where parties commingle monies, which may be used to acquire and improve existing or new assets, or build up equity with mortgage payments, complicated “tracings” must take place to separate community from separate property, particularly when one party wishes to assert their separate interest, or to be reimbursed for a separate property contribution to the acquisition of a community asset. If a spouse or partner is unable to provide these tracings because necessary documents cannot be found, he or she may lose valuable property rights since the burden of producing evidence usually lies with the “separatizer”, i.e., the one who wants it separated.
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