The Wife's Rights in a Divorce in California

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California grants a number of rights to each spouse in a divorce in California; however, for marriages made after 1975, these rights are gender-blind. Wives and husbands who divorce typically enjoy the same default rights and responsibilities, though certain events before or during the marriage may change either spouse's position. Those with questions about a specific California divorce should consult a California legal professional.

Community Property Rules

California follows community property rules, codified in the California Family Code. In community property systems, the default division of property is an equal split between spouses of all property earned by either during the marriage. However, each spouse has the right to any property she brought to the marriage, as well as any property she received during the marriage by gift or inheritance; such property is known as "separate property." When the couple buys an asset, that asset's ownership in a divorce is determined by which type of property was used to purchase the asset.

Premarital Contracts

California's community property rules are only the default position. California law also allows couples planning to marry to make contracts with each other that detail exactly how they will divide their property upon divorce. However, Family Code Sections 1610 through 1617 create numerous requirements for a valid premarital contract. Among other requirements, the contract must be written and signed, and both spouses must have signed the contract voluntarily. If one spouse gives up her legal rights to post-marital support via such an agreement, the code demands that that spouse has had the option of independent legal counsel as well as seven days to look over the agreement before signing.

Mixed Property

Sometimes spouses acquire marital property using a mixture of community and separate funds. For instance, spouses may acquire a house via a mortgage; they may use separate property for the down payment and community property to make the continuing mortgage payments. In such cases, it can be difficult to divide the property, particularly after the property has appreciated. So the law attempts to "trace" the property's value to its origins and decide exactly how much of the property's value comes from each type of property.

Married Woman's Presumption

The one gender-dependent California divorce law is Family Code Section 803, also known as the "Married Woman's Special Presumption." When a married woman acquired property before 1975, the law presumes that the property is her separate property. However, if the instrument of acquisition stipulates that a married couple acquired the property as "husband and wife", the law presumes that it's community property. These are only presumptions; should either party to the marriage present evidence of ownership, a court may find that such evidence outweighs the presumption.


About the Author

Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.

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