California Family Law: Marital Property Characterization and Division
Core Framework
California is a community property state. Begin every property question by characterizing the asset, because characterization drives division. Community property is property acquired during marriage while domiciled in California (Fam. Code § 760). Separate property is property owned before marriage, acquired after separation, or received by gift or inheritance during marriage (Fam. Code § 770). Division is equal unless the parties agree otherwise.
Key Doctrines to Know
Understand presumption of community property (Fam. Code § 803) and how to rebut it with tracing. Know Pereira (allocating a fair return to separate capital, remainder to community) versus Van Camp (deducting reasonable compensation for services, remainder to separate). Learn Moore/Marsden for separate real property improved with community funds. Know Family Code § 2640 reimbursement for separate contributions to community property, and § 852 transmutation requirements - an express written declaration is generally required.
Common Question Traps
- Confusing title with characterization: title alone does not determine community property status.
- Forgetting that § 2640 reimbursement is dollar-for-dollar without interest or appreciation.
- Misapplying Moore/Marsden to separate property purchased before marriage versus during marriage.
- Ignoring the date of separation as the cut-off for community earnings.
- Assuming joint title automatically transmutes separate property - rebuttable presumption, not conclusive.
Worked Example
Spouse A owns a house before marriage worth $200,000, with $150,000 mortgage. During marriage, community funds pay $50,000 of principal. At divorce, the house is worth $300,000. Under Moore/Marsden, calculate the community's proportionate interest based on principal reduction relative to purchase price, plus appreciation attributable to that share. A common rule of thumb: community share = (community principal payments ÷ purchase price) × appreciation, plus the principal payments themselves.
Rule of Thumb
Characterize first, trace second, value third, divide last. Write the timeline before doing math.
California Family Law: Child Custody and Visitation
Governing Standard
The controlling standard is the best interest of the child (Fam. Code § 3011). California does not presume one parent is better based on gender. The court considers health, safety, and welfare; history of abuse; and the nature and amount of contact with both parents.
Key Concepts
Understand legal custody (decision-making) versus physical custody (residence). Know joint custody rules under §§ 3002–3004 and the preference for frequent and continuing contact (§ 3020). Learn the § 3044 rebuttable presumption against awarding custody to a perpetrator of domestic violence. Know the role of mediation under § 3170 and the evaluator under § 3111. Familiarize yourself with the move-away framework from In re Marriage of LaMusga and Burgess: the parent with custody bears the burden of showing the move is in the child's best interest.
Traps in Questions
- Confusing the presumption in § 3044 with an absolute bar - it is rebuttable.
- Assuming a child's preference controls; under § 3042 the court may consider a mature child's preference but is not bound.
- Missing that move-away burdens shift depending on whether the moving parent has sole or joint custody.
- Overlooking mandatory mediation before contested custody hearings.
- Treating a custody evaluator's report as binding rather than advisory.
Worked Example
Mother has primary physical custody and seeks to relocate 400 miles away. Father objects. Under LaMusga, the court weighs the child's interest in stability against the benefit of the move, the parents' motives, and the child's relationship with the non-moving parent. The mother bears the burden to show the move serves the child's best interest.
Rule of Thumb
Always ask: what does the evidence show about health, safety, and welfare? Then apply the statutory presumption and burden-shifting rules.
California Family Law: Spousal and Child Support
Spousal Support
Distinguish temporary support (before judgment, guided by § 4320 factors and county guidelines) from permanent support (post-judgment, based on the § 4320 factors including marriage length, standard of living, earning capacity, and contributions to the other spouse's career). Know the Marriage of Gavron principle: a supported spouse may be expected to make reasonable efforts toward self-support. Understand the 'rule of thumb' that long marriages (generally 10+ years) may support indefinite jurisdiction, but this is discretionary, not automatic.
Child Support
California uses the statewide uniform guideline (§ 4055), a formula based on both parents' net disposable income, time-share percentage, and other factors. Know § 4058 income definitions (including imputed income and earning capacity under § 4058(b)). Understand mandatory add-ons under § 4062 (child care, uninsured medical costs) and discretionary add-ons under § 4061 (private school, extracurriculars).
Traps
- Assuming guideline support is always rebuttable - it is presumed correct but rebuttable under § 4057.
- Forgetting that imputed income can be based on earning capacity, not actual earnings.
- Mixing temporary and permanent spousal support standards.
- Missing that a Gavron warning must be given before reducing support for failure to become self-supporting.
- Overlooking that child support can be modified retroactively only to the date of filing (§ 3653).
Worked Example
Parent A earns $8,000 net monthly; Parent B earns $4,000. Time-share is 50/50. The guideline formula (roughly: high earner's income minus low earner's income, multiplied by a percentage adjusted for time-share and add-ons) yields a presumptive figure. Add mandatory child care costs apportioned by income share.
Rule of Thumb
For child support, always compute guideline first, then test for rebuttal. For spousal support, list § 4320 factors before arguing amount or duration.