§2.03 Presumption for Property Acquired in Joint Form During Marriage

Property acquired by parties during marriage in joint form, including property held

• in tenancy in common,
• in joint tenancy, or
• as community property,

is presumed to be community property. [FC §2581.]

Property is "acquired during marriage" when title to separate property is changed to a joint form during marriage, even though a lender required the change as a requirement of refinancing. [Marriage of Neal (1984) 153 CA3d 117, 123–124, disapproved on other grounds in Marriage of Buol (1985) 39 C3d 751, 763 n10 and Marriage of Fabian (1986) 41 C3d 440, 451 n13.] However, be careful to note that interspousal transactions are governed by the fiduciary standard of FC §721, which controls over the more general §2581 presumption. [Marriage of Delaney (2003) 111 CA4th 991, 997–998; see §§2.02, 7.07.]

The general presumption from joint title affects the burden of proof. You may find that the presumption is rebutted by one of the following [FC §2581]:

• A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate, not community, property; or
• Proof that the parties made a written agreement that the property is separate property.

In other words, spouses cannot hold property in joint title while preserving the property's separate property characterization through oral or implied agreements. [Marriage of Weaver (2005) 127 CA4th 858, 865.]