Sale of Community Property without Consent in California

Community property refers to property or assets that spouses obtain together during the course of their marriage. When spouses are divorcing in California, the court will divide their property according to the property distribution methods that are used in that specific state.

There are only a few states that use community property standards, including the State of California. Under these standards, a couple’s property will typically be split between the two spouses.

It is important to note that there are exceptions to these divisions, including:

• Property that was owned by one of the spouses before the marriage;
• Property that was obtained by one of the spouses after a divorce or separation that was not acquired through the use of community property, for example, income; and
• Property that was given to one of the spouses by a third party during the marriage, such as by gift or inheritance.

In general, an individual does not need the consent of their spouse to sell property. It may be possible for one of the spouses to sell community property without consent from the other spouse under certain circumstances, including:

• The proposed transaction is in the best interest of both parties involved, and consent has been refused for a valid and legitimate reason;
• The spouse cannot consent to the sale due to physical or mental impairment.

One example of this would be if one of the spouses desired to sell the home without consent from the other spouse. The party wanting to sell the home would have to show that the transaction is best for both parties or that their spouse cannot consent because of impairment.

If an individual has any questions regarding selling community property in California, they should consult with a local California attorney.

What Does “Best Interests of Both Spouses” Mean? What Does “Refused Without Good Reason” Mean?

What is deemed to be in the best interests of both of the spouses will vary greatly depending on each specific case. In the context of marital property, community is used to refer to the spouses.

One example of a transaction that may be in the interest of both spouses would be that both of the spouses have a high-interest community debt, and they have assets that may be mortgaged or sold at a lower interest rate. Another example would be if the spouses need money in order to fund important community needs, such as medical expenses for a child or home repairs.

One spouse can sell community property without the consent of the other spouse if the other spouse refuses to consent without good reason. For example, if the spouse is objecting simply because they are angry.

Another example would be if the refusing spouse will not explain why they refuse to provide consent.

What Can I Do if My Spouse Is Trying to Force Me to Sell Community Property?

When managing community property during marriage, it is important to remember that one spouse cannot force the other spouse to sell community property unless they have a court order. In addition, this applies to separate property.
If one of the spouses attempts to do so, the other spouse may argue that any document that was signed was done under coercion. This means that the documents will not be legally valid or enforceable.

If an individual’s spouse is trying to force them to sell community property, whether, during divorce proceedings or not, they may be able to obtain an injunction to prevent their spouse from selling it. An injunction is a court order that orders an individual to take a specific action or refrain from engaging in specific conduct.

If a spouse is attempting to force their spouse to sell community property, an injunction, in this case, would typically be a court order that the community property assets be preserved until there is an agreement regarding the division of the marital estate. If there is no agreement regarding the division of the marital estate, a court will usually order a just and right division of the marital estate.

Usually, the division of a marital estate occurs during the divorce proceedings. An individual and their spouse may be going through a divorce in California. If so, there are typically local court rules that will prevent a spouse from getting rid of communal property before an executed divorce decree or agreement regarding property division is in place.

One local court rule is that both spouses preserve and maintain community property during the divorce process. Examples of community property that will need to be covered in a division of property agreement include:

• The marital home: It does not matter which spouse purchased the home or if one spouse owned the home prior to the marriage. Both spouses have an equal community property interest in the value of the marital home;
  • For example, if the marital home is valued at $300,000, each of the spouses would have a property interest of $150,000 in the marital home;
• Motor vehicles: If a vehicle was obtained prior to the marriage, the vehicle may be considered to be separate property of the individual;
  • Simply because a vehicle is used as a family vehicle or by one spouse does not mean the separate property is transformed into community property;
  • However, a court will review such facts when making a just and right division of the marital estate and community property;
• Bank accounts: Many individuals incorrectly believe that the money is separate property because their income goes into a separate account instead of a joint account. All income earned during a marriage is considered to be community property, regardless of the account it is maintained in;
• Retirement: All retirement that was acquired during the marriage is considered to be community property. This includes military retirement that is accumulated during the marriage;
  • If either spouse is in the military, it is important to seek out the assistance of a qualified military divorce attorney because there are special rules that come into play regarding the division of military retirement and calculating military child support; and
• Other property: Other property may include furniture, electronics, jewelry, and other items.

Usually, the spouse who wants to dispose of the community property will be required to seek permission from the court to sell community property. One of the most common pieces of community property that spouses may wish to sell is the marital home.

One spouse may want to sell the marital home and buy out the other party’s interest in the home. Another common issue that arises when dividing community property is that one of the spouses may offer not to seek the other spouse’s retirement income or other property in exchange for keeping the residence.

How Do I Convert Community Property to Separate Property?

Changing the character of property from community to separate property and vice-versa is referred to as transmutation. In the State of California, a valid transmutation has to satisfy the specific requirements that are outlined in the Family Code.

Another option is an exchange or partition agreement, which is similar to a prenuptial agreement but can be executed at any time during a marriage. This type of agreement allows the spouses to outline what community property will be transferred to which spouse and what will be treated as separate property.

Should I Contact a Lawyer for Help with Community Property Issues?

If you are going through a divorce in California and you need help dividing property, it is essential to consult with a California family lawyer. A lawyer can help determine what property will be considered community property.

Your lawyer can also help you reach an agreement with your spouse regarding the division of property. In addition, your lawyer will represent you in court if you cannot reach an agreement with your spouse regarding the division of your community property.