Same Sex Divorce Asset Division
California is a community property state. This means that any joint property between the parties is split evenly when they get divorced. For an item to be “community property,” it must have been gained while the couple was married and living together. Anything that was earned or received before the marriage is “individual property” or “separate property,” and is not divided during divorce.
In California, community property is divided 50/50, meaning each spouse is entitled to receive half of the assets. This does not mean that each asset needs to be split down the middle, or that they receive one arbitrarily chosen half. Spouses can negotiate, often through their lawyers, about who gets to keep what assets, and whether they can keep certain assets in exchange for giving up others.
Individual property is not divided upon divorce. This property, first and foremost, includes property that the parties brought to the marriage. It also excludes the following:
- Inheritances either party received,
- Gifts to either party,
- Money from the sale of other individual property, and
- Gifts given from one spouse to another, intended to be set aside as individual property.
These rules apply regardless of the gender of either spouse. This also means that the division is equal and does not favor either party. During a divorce, each party gets to keep all of their individual property. Talk to a family law attorney to understand how property will be divided in your particular case.
Engagement and Wedding Rings in a Same-Sex Divorce
In same sex relationships, the parties may have multiple engagement rings. In the oldest traditions, only one spouse had a wedding ring. In modern times, both spouses often wear wedding rings, but typically only one party wears an engagement ring. In more and more same-sex relationships, both parties will each receive an engagement ring. Parties may buy these rings jointly, each party may buy a ring for the other, or one party may buy both rings.
Engagement rings are unique, because they are neither exactly individual property owned before the marriage nor community property acquired during the marriage. Under California law, they are considered a “conditional gift,” which does not fully transfer ownership until the condition is met. Since they are engagement rings, the condition that transfers ownership is the marriage itself. This means that the engagement ring belongs to the person who bought it, not the recipient, until the marriage is actually finalized.
If the couple breaks up before the wedding, the ring is returned to the person who originally purchased it. If there are two rings, each purchased by one party, they are each returned. If one party bought both of the rings, they get to keep both of them. Lastly, if the parties split the cost, then they continue to share ownership of the rings and may each keep one, or sell the rings and divide the proceeds.
If the marriage is completed, the ring belongs to the person who received it. If there were two rings, each would complete the transfer of ownership, so each spouse would own one ring. Upon divorce, these are considered individual or separate property and are not split during divorce. This means that the person who received the ring gets to keep it when they get divorced. They can keep it, sell it, or throw it away – and the other party typically has no legal right to tell them otherwise.
There is usually an exception for important rings, though. Many people may use family heirlooms as engagement rings. Your grandparents’ ring, your parents’ ring, or some other heirloom may be used to ask your spouse to marry you. In these situations, since the ring is an heirloom, the law may require it to be returned to the original owner – not the recipient.
The rules for engagement rings apply to any gift given “in contemplation” of the marriage. If you received a necklace, a bracelet, a watch, or any other jewelry or physical gift in place of an engagement ring, these rules still take effect. This means that, if the relationship ends before the wedding, the giver gets it back; if the marriage ends in divorce, the recipient keeps the item.
Same-Sex Divorce Lawyers
If you are considering a divorce, contact an attorney today. The Ventura family lawyers at the Law Offices of Bamieh and De Smeth represent spouses in any divorce in California, and help you to understand how California law applies to your divorce case. For a free consultation on your case, call (805) 643-5555 today.
