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One of the most common type of scenarios that family law attorneys see during a divorce process is one spouse “giving” away assets both prior to and during the divorce. There may be any number of reasons that this could occur. For example, divorce generally means one or both spouses is going to move out of the home they shared and there is a natural jettisoning of property that often occurs with a move. Or a spouse might just want a fresh start and not be burdened with assets that they either no longer have a need for (the fondue set received as a wedding gift and never used) or which carry unwanted memories (the camping gear the couple used for a month-long road trip). But giving away assets is also used as a way to keep assets hidden during a divorce, or to openly spite the other spouse (giving a husband’s favorite recliner to Goodwill). In all cases, the property should not be given away if it is community property unless both spouses consent, and giving it away without consent can create problems during the divorce.

Why Community Property Cannot Be Unilaterally Given Away

Before understanding why spouses are restricted in how they can handle community property, it is of course critical to understand what community property is. In California and other states that incorporate a community property regime, community property generally includes all property that is either earned or acquired during a marriage by either party, regardless of which spouse “earned” it. Such property legally belongs to both spouses. On the other hand, separate property is the property each spouse had before the marriage or which was gifted to one spouse individually.
In short, one spouse cannot simply give away community property to another party without the consent of the other spouse. Thus, if your husband used his earnings during the marriage to buy a boat or surround-sound speakers or diamond earrings, he cannot give that property to his brother or co-worker or new girlfriend without your consent. Instead, all community property must be fully accounted for during the divorce and divided equally among the parties. This is true whether the other spouse is truly “giving” the property away or merely having the other party “hold” it while the divorce proceeds with the understanding it will be returned after the divorce. Once the divorce is finalized and each party gets their own distribution of community property, they are then free to give it away as they please, but not before.
 

Working With an Attorney to Recover Community Property

Unfortunately, many spouses try to play games with community property either as a way of increasing the amount of property they get to keep following a divorce or to antagonize or “get back” at the other spouse. But doing so is against the law, is clearly unfair to the other spouse, and can invite scrutiny from the judge overseeing the divorce proceedings.
By working with an experienced family law attorney, you can take legal action to prevent your spouse from improperly giving away your community property. When the property has already been given away, your attorney can also take steps to recover the property or at least account for your spouse’s misdeeds in the distribution of property and hold them accountable in your divorce proceeding.
For any questions on family law in California, contact the Law Office of Kelly Finan today to schedule a consultation to discuss your circumstances.