The specific community property laws in each state vary, but they all generally state that property obtained during the marriage is owned by both couples and is divided between the parties in a divorce, annulment, or death. There may be some differences, for example, as to how much ownership each party has to the property depending on their contribution in its acquisition. Non-community property states follow equitable distribution rules. Most states follow Equitable Distribution rules which classify jointly owned property as marital.
The non-community property states or separate property states characterize property earned by a wife or husband as her or his individual separate property. Separate property refers to the property that one brings to the marriage remains the separate property of that individual and does not get divided should the marriage fail. If spouses move from a separate property state, all property acquired in that state and all property acquired with that property is the separate property of the spouse who earned it. There are special rules that apply at the death of a spouse, to assure an equitable result. Laws governing separate property vary in each state.
Separate property in a community property state includes:
• All property owned by a spouse prior to marriage.
• Any property obtained by a spouse after a legal separation.
• Any property received as a gift or inheritance during the marriage from a third party such as joint banking accounts.
• Any pre-marriage debts.
One of the earliest mentions of the distinction between the wife’s separate property and common property is in the California Constitution of 1849: Section 14 which states that all property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife in relation as well to her separate property, as to that held in common with her husband. The property that each spouse brings into the marriage, that is, the property that s/he owned before the marriage, is considered to be “separate” or “non-marital” property. Some states, such as California, have a separate property rule that says that all property brought into the marriage, (including gifts and inheritance), that is kept separate and apart from community property remains the separate property of the spouse that owns it.