Control of Marital Property

Division 4, Part 4 of the California Family Code deals with the management and control of marital property. Section 1100 provides that either spouse has the management and control of the community personal property, with like absolute power of disposition, other than testamentary, as the spouse has of the separate estate of the spouse.

A spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse. This subdivision does not apply to gifts mutually given by both spouses to third parties and to gifts given by one spouse to the other spouse.

A spouse may not sell, convey, or encumber community personal property used as the family dwelling, or the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children which is community personal property, without the written consent of the other spouse.

A spouse who is operating or managing a business or an interest in a business that is all or substantially all community personal property has the primary management and control of the business or interest. Primary management and control means that the managing spouse may act alone in all transactions but is required to give prior written notice to the other spouse of any sale, lease, exchange, encumbrance, or other disposition of all or substantially all of the personal property used in the operation of the business.

Each spouse is required to act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence, until the time as the assets and liabilities have been divided by the parties or by a court.

Section 1101 provides that a spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse’s present undivided one-half interest in the community estate. A court may order an accounting of the property and obligations of the parties to a marriage and may determine the rights of ownership in, the beneficial enjoyment of, or access to, community property, and the classification of all property of the parties to a marriage.

A court may order that the name of a spouse is to be added to community property held in the name of the other spouse alone or that the title of community property held in some other title, except with respect to four specified items of property.

In any transaction affecting community property in which the consent of both spouses is required, the court may, upon the motion of a spouse, dispense with the requirement of the other spouse’s consent if two specified requirements are met. Any action may be brought under this section without filing an action for dissolution of marriage, legal separation, or nullity, or may be brought in conjunction with the action or upon the death of a spouse.

Section 1102 states that either spouse has the management and control of the community real property, but both spouses, either personally or by a duly authorized agent, are required to join in executing an instrument by which that community real property or an interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered. This section does not apply to a lease, mortgage, conveyance, or transfer of real property, or of an interest in real property, between spouses.

Section 1103 provides that, where one or both of the spouses either has a conservator of the estate or lacks legal capacity to manage and control community property, the procedure for management and control (which includes disposition) of the community property is that prescribed in the Probate Code. There are additional rules for when one or both spouses either has a conservator of the estate or lacks legal capacity to give consent.