Community property

Community property or Community of Property is a marital property regime under which most property acquired by a spouse during a marriage (except for gifts or inheritances), is owned jointly by both spouses and is divided upon divorce, annulment or the death of a spouse.

Property owned by one spouse before the marriage is sometimes referred to as the "separate property" of that spouse, but there are instances in which the community can gain an interest in separate property and even situations in which separate property can be "transmuted" into community property. The rules vary from jurisdiction to jurisdiction.

The community property concept originated in civil law jurisdictions but is now also found in some common law jurisdictions.

Jurisdictions

Custom of Paris in New France

Main article: Marriage community

South Africa

Main article: Marriage in South Africa

In South Africa, if a couple does not sign an antenuptial contract, before a notary public, which is subsequently registered at a deeds office, prior to marriage, they are married in community of property, which means that all of their assets and liabilities (even those acquired before the marriage) are merged into a joint estate during their marriage, in which each spouse has an undivided half-share. Each spouse has equal power to deal independently with the estate, except that certain major transactions require the consent of both spouses. One of the consequences of community of property in South Africa is that if one spouse is declared insolvent (bankrupt) during the marriage, the other also becomes insolvent, a potentially devastating consequence.[1]

United States

Main article: Community property in the United States

Map of the United States with community property states in red. Additionally, Alaska is an elective community property state, and of the five inhabited US territories, Puerto Rico and Guam are community property jurisdictions.

Division of community property may take place by item by splitting all items or by values. In some jurisdictions, such as California, a 50/50 division of community property is strictly mandated by statute so the focus then shifts to whether particular items are to be classified as community or separate property. In other jurisdictions, such as Texas, a divorce court may decree an "equitable distribution" of community property, which may result in an unequal division of such. In non-community property states property may be divided by equitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property (not community property). See division of property. Division of community debts may not be the same as division of community property. For example, in California, community property is required to be divided "equally" while community debt is required to be divided "equitably".

The United States has nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska has also adopted a community property system, but it is optional. Spouses may create community property by entering into a community property agreement or by creating a community property trust. In 2010, Tennessee adopted a law similar to Alaska's and allows residents and non-residents to opt into community property through a community property trust. The commonwealth of Puerto Rico allows property to be owned as community property also as do several Native American jurisdictions.

References

• Gail Boreman-Bird. Cases and Materials on California Community Property, 10th edn. Revised by Jo Carrillo. St. Paul, Minn.: West Academic Publishing, 2011.
• Jo Carrillo. Understanding California Community Property Law. New Providence, NJ: LexisNexis, 2015.
• Jan P Charmatz & Harriet Spiller Daggett, eds. Comparative Studies in Community Property Law. Baton Rouge: Louisiana State University Press, 1955 (repr: Westport, Conn.: Greenwood Press, 1977).
• Charlotte K. Goldberg. Examples & Explanations: California Community Property, 5th edn. NY: Wolters Kluwer, 2016.
• Robert L. Mennell & Jo Carrillo. Community Property in a Nutshell, 3rd edn. St. Paul, Minn.: West Academic Publishing, 2014.
• William A. Reppy, Jr. Community Property, 18th edn. Chicago: Thomson/BarBri Group, 2003.
• William A. Reppy, Jr., Cynthia A. Samuel, & Sally Brown Richardson. Community Property in the United States, 8th edn. Durham, NC: Carolina Academic Press, 2015.