Is property purchased during marriage but is in the name of only one of the spouses considered community property? My husband purchased our home 5 months ago. We are heading for divorce. Does the property become community property? He says I will get nothing.

In the state of California, community property is defined as “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property” (Fam.C. § 760), except some situations, like when it is acquired by gift, bequest, devise, or descent [Fam.C. § 770 (a)].

However, the form of the title of the property may give rise to a rebuttable presumption of its status, so unless ownership interests are otherwise established by sufficient proof, record title is usually determinative of characterization [Marriage of Lucas (1980); Marriage of Fossum (2011);Marriage of Brooks & Robinson (2008)].

For example, where title is taken in the name of one spouse alone as his or her sole and separate property, with the knowledge and consent of the other spouse, the property is rebuttably presumed to be the separate property of the spouse who is the record title holder [Marriage of Brooks & Robinson (2008)].

But this presumption, as have been previously mentioned, is rebuttable, only with “clear and convincing proof” (California Evidence Code § 662). Although it is possible, rebutting the form of the title is not an easy process, so it is best to work with an attorney who is an expert in divorce to properly and competently handle issues involving property rights during the petition for dissolution.

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