Separate v. Community Property

Property can be either separate or community property. While this maxim sounds easy to distinguish, that is not always the case in reality and rarely the case in heavily contested divorce cases. Separate property is controlled solely and exclusively by the owning spouse. The non-owning spouse has no inherent statutory right to sell, use, or exercise any property right that is exclusive to the owner spouse.

If it is community property, each party has the right to control his or her interest in the property. Such property ownership exists from a legal standpoint as either a joint tenancy or a tenancy in common. Each party must consent to conveyances of the others interest. If a home is treated as community property as a joint tenancy, Party A cannot sell the property without first getting the consent of Party B. When one party does transfer their sole and exclusive interest, any joint tenancy that existed previously becomes a tenancy in common.

One caveat that has arisen to the prototypical community property arrangements is when one party is entrusted to exercise oversight over the other party’s interest in the property. This triggers two areas of law more accustomed to a corporation than a marriage: fiduciary law and agency law. Each party has separate duties to one another, but those duties will vary based on whether or not the ownership of the property is clear or cloudy.

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