The Law of Community Property, Part 2

Part two of a four part article series

Monday, July 27, 2015 | 7:33 pm

In the last article in this series, we were following the origination of the community property concept with the Visigoths in the Iberian Peninsula following the fall of the Roman Empire through Spain, Mexico and finally its adoption by the new state of California at the 1850 Constitutional Convention. Community property has found its way into several states. Community property laws were applied mandatorily in eight states; California, Nevada, New Mexico, Texas, Louisiana, Washington, Arizona and Idaho. However, in Wisconsin a couple may opt out of community property and in Alaska a couple may opt into community property.

What is community property? Community property is any property that was acquired during a marriage. The idea behind community property was to provide for the wife and children of a marriage upon the death of the husband by giving to the wife equal ownership of all property acquired during the marriage.

Under English common law, when a woman married, her rights merged with that of her husband’s. Under this system, the husband would take ownership of his wife’s personal property and also had the exclusive right to manage her real property, while it remained her separate property. During the marriage all of the property acquired during the marriage belonged to the husband and upon a divorce the wife would receive none of the property acquired during the marriage.

Community property law contemplates that husband and wife are partners in the marital relationship and equally own everything which was acquired during the marriage. As this system was in place in California since it was a Spanish colony, there were a fair number of women who owned land when California became a state in 1850.

California law today is a hybrid of English common law and community property law. Today California recognizes the English concept that separate property does not automatically integrate into community property and the community property concept which provides for a sharing of property acquired during the marriage between the husband and wife.

Next time I will discuss types of property considered to be community property and how the designation of community property affects everyday life.

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