If you and your partner bought property before you could legally marry, California generally treats it as the separate property of whoever acquired it. Community property starts on the date your legal relationship began, meaning your marriage or your domestic partnership registration, not the date you moved in together or the year marriage equality arrived.
Most people facing this question have a relationship that is longer than their legal record. A couple may have shared a home for ten or fifteen years, registered as domestic partners at some point, and married later still. Now, at the end of that relationship, the house, the savings and the retirement accounts all have to be sorted into "yours," "mine" and "ours," and the dates on paper do not match the life the two of you actually lived. That mismatch is what makes this question hard, and it is what this article walks through.
The Short Answer: How California Classifies Property Acquired Before Marriage Equality
California is a community property state. Property one spouse owned before the marriage is generally that spouse's separate property. Property acquired during the marriage is generally shared equally, and that shared property is called community property.
For same-sex couples, two legal statuses can start the community property clock. The first is marriage. The second is a registered domestic partnership (RDP), which is a legal relationship registered with the State of California that carries the rights and duties of marriage. Whichever came first usually sets the starting line.
The difficulty lies in the gap years. Many couples lived together, pooled money and bought homes long before either status was open to them. Standard California divorce rules assume that a couple's financial life and legal life begin around the same time. For many LGBTQ couples, they began years apart, and the rules have to be applied to a timeline they were not designed around.
California's Separate Property Rule and Why the Timeline Matters for Same-Sex Couples
Cal. Fam. Code § 760 sets the baseline: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property."
Cal. Fam. Code § 770 defines the other side. Separate property includes "all property owned by the person before marriage," property acquired during marriage "by gift, bequest, devise, or descent" (in plain terms, gifts and inheritances), and the rents, issues and profits of that separate property.
Read together, the two sections turn on one date: when the legal relationship began. Cohabitation does not start the community property clock. Neither does a commitment ceremony that created no legal status, a joint bank account, or the fact that both partners thought of the house as "ours."
That matters because so many same-sex couples acquired significant assets during a period of cohabitation. One partner may have bought the house in 2002 in their own name. The couple may have lived there together, painted it together and paid bills together for years before any legal status existed. When the couple later married or registered, that house did not automatically become community property. Under § 770, it generally stayed the separate property of the partner who owned it before the legal relationship began.
The useful distinction, then, is between two categories:
- Property acquired before the legal relationship began. Generally separate property of the partner who acquired it.
- Property acquired after registration or marriage. Generally community property, unless it was a gift, an inheritance or another exception applies.
Separate property does not always stay perfectly separate, though. What happens to it after the legal relationship begins can change the picture, which the tracing section below covers. The broader framework for dividing assets is covered in our overview of LGBT property division.
Registered Domestic Partnerships and the AB 205 Retroactive Rights Framework
AB 205 (Stats. 2003, ch. 421) is the law that made domestic partnership a full parallel to marriage in California. From January 1, 2005, registered domestic partners have the rights and duties of spouses, whenever they registered. A couple who registered in 2001 and a couple who registered in 2010 both hold those rights. The 2001 couple did not hold them from their 2001 registration date, though. Their spousal rights and duties run from January 1, 2005.
Cal. Fam. Code § 297.5 codifies the rule. Registered domestic partners "shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law... as are granted to and imposed upon spouses." Subdivision (d) extends the same equality to the partners' rights and obligations toward a child of either of them.
For property, subdivision (k)(1) carries the most weight. It provides that, with respect to community property, debts to third parties, support after dissolution and other property rights between the partners, "any reference to the date of a marriage shall be deemed to refer to the date of registration of a domestic partnership with the state."
In practice, property acquired after the RDP registration date may be treated as community property under the same rules that apply to married spouses. Property acquired before registration generally remains the separate property of the acquiring partner. Subdivision (k)(2) adds a narrow rule for partnerships registered before January 1, 2005: a qualifying premarital-style agreement the partners had fully executed and in force as of June 30, 2005 can be enforceable under the premarital agreement statutes, apart from its effective date.
Many couples hold both statuses. A couple might register in 2004, marry in 2014, and now face a dissolution with three dates on file: the 2004 registration, the January 1, 2005 effective date of AB 205, and the 2014 marriage. Each date can matter for a different asset. Couples looking at a decade or more of overlapping status often find that the first useful step is simply lining those dates up in order.
The Marriage Equality Gap: November 2008 to June 2013
In November 2008, California voters approved Proposition 8, providing that only marriage between a man and a woman is valid or recognized in California. California allowed no new same-sex marriages from November 2008 until after Hollingsworth v. Perry was decided on June 26, 2013.
Hollingsworth v. Perry was a decision about standing, meaning the legal right to bring or continue a case. The U.S. Supreme Court held that the petitioners did not have standing to appeal the District Court's order, and it vacated and remanded the Ninth Circuit's judgment. The Court did not rule on the merits of Proposition 8. The broader history is covered in our article on same-sex marriage in California.
That gap left its mark on property. A couple who met in 2008 and wanted to marry could not do so in California for roughly five years. During that time they may have bought a condo, built retirement savings or started a business, all before any marriage was possible. If they did not register as domestic partners, the property each partner acquired during those years is generally that partner's separate property under § 770, even though the couple would have married sooner if the law had allowed it.
Some couples did register as domestic partners during the gap. For them, the AB 205 framework applies, and their registration date generally serves as the start of community property under § 297.5(k)(1).
Couples who married in California before November 2008 occupy a distinct position again. Their marriage date predates the gap, so their timeline raises different questions from those of couples who could not marry until after 2013. How those dates apply is best looked at on the couple's own facts.
Tracing Separate Property: What Changes It and What Doesn't
Separate property generally keeps its character through a marriage or partnership, but certain events can change or blur it. Tracing is the process of following an asset, or the money used to buy it, back to its source to show which category it belongs in.
Transmutation. A transmutation is a change in the character of property, from separate to community or the reverse. Cal. Fam. Code § 852 provides that "a transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." A conversation, a shared intention or a casual note generally does not transmute property. Subdivision (c) carves out small personal gifts between spouses, such as clothing or modest jewelry.
The fiduciary duty. Cal. Fam. Code § 721 allows spouses to enter into property transactions with each other, but it subjects those transactions to a "duty of the highest good faith and fair dealing," and neither spouse may "take any unfair advantage of the other." Because § 297.5 extends spousal duties to registered domestic partners, this standard applies to them as well.
Commingling. Commingling means mixing separate funds with community funds, such as depositing an inheritance into a joint account used for household expenses. California law generally holds that commingled funds can lose their separate character unless the person claiming separate property can trace them back to a separate source. The burden of tracing generally falls on the spouse or partner making the separate property claim. This is why accurate asset documentation carries so much weight in these cases.
Joint title. Cal. Fam. Code § 2581 provides that property acquired during marriage in joint form, including joint tenancy and tenancy in common, is presumed to be community property at dissolution. The presumption can be rebutted in two ways: by "a clear statement in the deed or other documentary evidence of title" that the property is separate, or by "proof that the parties have made a written agreement that the property is separate property."
Separate contributions. Cal. Fam. Code § 2640 gives a party reimbursement for separate property contributions to the acquisition of community property, such as down payments, improvements and principal reduction, to the extent the party can trace them to a separate source. Payments of interest, maintenance, insurance and taxes generally do not count. The reimbursement is without interest and cannot exceed the property's net value at division, unless the party waived the right in writing.
Community payments on a separate home. The reverse situation is common for couples whose homes predate their legal relationship. Under what California courts call the Moore/Marsden rule, when community funds are used to pay down the mortgage on one partner's separate property home, the community can acquire a proportional interest in that home. The house may remain separate property, while the community still holds a share tied to the principal paid during the legal relationship. Retirement savings raise similar tracing questions, discussed in our article on retirement accounts in same-sex divorce.
Premarital agreements. Cal. Fam. Code § 1610 defines a premarital agreement as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage," and the sections that follow set the rules for those agreements. A valid premarital agreement can fix the character of property in advance. Couples who signed agreements before marriage equality, sometimes as cohabitation contracts and sometimes as partnership agreements, often have documents whose legal status depends on when and how they were signed. Our article on pre- and post-nuptial agreements covers these agreements in more depth.
When the Property Question Gets More Complicated: Cohabitation, Putative Spouses, and Marvin Claims
Years of shared life with no legal status at all can feel invisible to community property law, and in a sense they are. Other legal doctrines may still reach those years, though. Each is fact-specific, and none of them is the only route for resolving a dispute over property acquired during cohabitation.
Common-law marriage. California generally does not recognize a common-law marriage formed in California, meaning a marriage created by living together and holding out as married without a license. California may recognize a common-law marriage validly formed in another state that allows it.
Marvin claims. In Marvin v. Marvin, 18 Cal.3d 660 (1976), the California Supreme Court held that courts may enforce express or implied contracts between cohabiting partners regarding property. An express contract is one the partners stated, in writing or out loud. An implied contract is one shown by the partners' conduct. A Marvin claim is a contract claim, not a community property claim, so the equal-division rules of § 760 do not apply to it. These claims can come up when one partner contributed money or work toward property titled in the other partner's name during years when no legal status existed.
Putative spouses. Under Cal. Fam. Code § 2251, when a marriage is found void or voidable and a party "believed in good faith that the marriage was valid," the court declares that party a putative spouse. A putative spouse is someone treated as a spouse for certain purposes because of that good-faith belief. On that party's request, the court divides property acquired during the union that would have been community property, which the statute calls "quasi-marital property."
For same-sex couples who went through a ceremony before marriage equality and believed in good faith that it created a legal marriage, the doctrine may be relevant. Whether it applies depends on the facts of the ceremony, what the couple knew and what they believed at the time.
What to Bring to a Consultation About Pre-Equality Property
Questions about pre-equality property are usually answered by documents and dates. The records below help a family law attorney analyze how California's rules apply to a particular timeline. Few people have all of them on hand, and missing records can often be located later.
- Domestic partnership registration. The registration date of any California domestic partnership, which the California Secretary of State maintains, along with any termination or dissolution records.
- Marriage records. The marriage date and, where it applies, the date and location of any earlier ceremony or commitment, including ceremonies held in other states or countries.
- Acquisition documents. Deeds, account statements and loan documents showing when each significant asset was acquired and in whose name.
- Written agreements. Any premarital, cohabitation, partnership or transmutation agreements signed before or during the relationship, including drafts that were never finalized.
- Contribution records. Records of separate property contributions to jointly titled property, such as a down payment from pre-relationship savings or an inheritance used for a remodel.
- Payment history. Records of mortgage payments on a home one partner owned before the legal relationship, which bear on a Moore/Marsden analysis.
The California Courts Self-Help Guide also explains the general divorce and dissolution process, including the property disclosures each party exchanges.
If You'd Like to Talk Through Your Timeline
Property questions for couples whose relationships predate marriage equality rarely turn on a single rule. They turn on how a registration date, a marriage date, years of cohabitation and the 2008 to 2013 gap line up against each asset, and on what the deeds and agreements actually say. A conversation about this subject typically centers on those dates, how each asset was titled and paid for, and which doctrines, such as tracing, Moore/Marsden or a possible Marvin claim, may bear on it. The firm practices California family law only.
To talk through how these rules apply to your own property and timeline, call LGBTDivorceLaw.com at (866) 343-4226 for a confidential consultation.