Who Keeps the House in a Divorce?

Property and debt can add immense pressure to divorce proceedings. Divorce is a complicated and painful process that quantifies the relationship between two people down to the cent. Incorrect information about property and ownership can cost those seeking to divorce dearly. Even if you and your partner come to a property agreement privately, the court must have official documentation.

The court is responsible for making decisions about property division when you get divorced or legally separated. This does not necessarily mean that you have to attend a court hearing. Often, ownership decisions are worked out through an agreement. There are specific requirements for the division of property, depending on the couple’s relationship.

What Counts as Property?

Property is anything that has value or can be bought or sold. Your house, vehicles, furniture, and clothing items are all considered property. Determining what has value can be a little harder to define and far too important to dismiss.

All of the following are considered property:

  • Bank accounts and cash
  • Security deposits on apartments
  • Pension plans and 401 (k) plans
  • Stocks
  • Life insurance with cash value
  • A business
  • A patent

California is a community property state, meaning any marriage or registration of a domestic partnership between two people constitutes a legal community. This means that property bought together is communal and items or funds owned before the marriage or partnership are separate property.

Community Property and Quasi-Community Property

Any property you and your partner own jointly is considered community property. Earnings acquired during the marriage/partnership are property belonging to the community. An unfortunate aspect of community property is that debt accrued during the partnership is communal. Communal debt includes credit card debt even if the card is only in your name or your partner’s. Joint property also has the benefit of giving you more ownership than you might think. Pension plans earned during the relationship are communal, and you have a right to part of the money.

Quasi-community property is a little more complex to define. This refers to any property that was purchased by either partner when living in another state. If you or your partner purchased real estate or anything else that could be considered property that would be communal in the state of California, it becomes quasi-community property. Even if they have been acquired outside of the state, your earnings and property would be joint if you pursue a divorce or legal separation in California.

Separate Property

Property items and earnings you had before the marriage or domestic relationship are yours and, as such, are considered separate property. As long as the property was kept separate during the partnership, it belongs to you. This can also include things that you purchased with noncommunal means. Any property acquired after the legal separation is also separate. To ensure that you keep your individual property, keeping track of the money source used to purchase property is crucial. The date of separation also plays a large role in what is community property vs. separate property.


In some cases, the property may be both communal and separate. For example, if you buy a car before your partnership, then sell it and use it to buy another during the marriage or domestic partnership, the new vehicle is now considered community property. The equity of your house could be divided if it was commingled. A pension can also fall into this category if part of it was a benefits package from a job held before the partnership.

Attempting to calculate a pension for a divorce or legal separation is incredibly tedious. There are many rules and technicalities that apply only to pensions. For a pension plan to be divided, it must become joined through a court order called a qualified domestic relations order, or QDRO. This process, if done incorrectly, can yield results that harm both parties. Please consult a lawyer to prepare a QDRO for you to ensure that the form is filled out correctly.

How to Calculate Communal and Separate Property

The best way to calculate communal and separate property is with the help of a qualified lawyer. The intricacies of a divorce or legal separation can be confusing and stressful without legal counsel. Dissolving a partnership is difficult enough without running into issues due to incorrect filing. If you are in the Oceanside or Del Mar area and looking for experienced legal advisors and attorneys to help you in your divorce or legal separation, contact Palmer Rodak & Associates.

We have served the community of San Diego for 22 years. Our attorneys approach every case with compassion and resolve to help achieve maximum results. We will review your case and help you figure out what to do next. Choose a legal team that cares.

Contact Palmer Rodak & Associates by calling us at (760) 573-2223 or schedule a complimentary case plan evaluation.