California Family Code 770 Defines Separate Property
Learn about the three categories that make up Family Code 770
California Family Code 770 place "separate property" into three categories
Here is how Family Code 770 reads.
Note it breaks up separate property into three categories.
"(a) Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
(b) A married person may, without the consent of the person's spouse, convey the person's separate property."
What Family Code section 770 tells us is separate property is property owned by one spouse individually, instead of both spouses. And separate property includes the following property:
- All property owned by the person before marriage
- All property acquired by the person after marriage by gift, bequest, devise, or descent
- The rents, issues, and profits of the property described above
Property can mean anything - real property, personal property and intellectual property
Separate property is not divided in a divorce or legal separation case. Instead, each spouse keeps their separate property. Spouses can agree to do this differently but it is unusual for a spouse to give his or her separate property to the other spouse.
Family Code section 770 also gives a married person the right to convey their separate property without the consent of their spouse.
While the divorce is pending, this may not be lawful due to the Standard Family Law Restraining Orders, without a court order or the other spouse's consent. Read the previously linked article so you learn what a spouse can and cannot do with their separate property (or community property) during a divorce.
But outside of the divorce, a spouse can usually sell, transfer, or otherwise dispose of their separate property without the permission of their spouse.
Note the provision about, "rents, issues, and profits" of the separate property. What does that mean? Separate property can generate income - think of an investment account, rental property or an interest in a business as some examples.