Opting In, Opting Out: Autonomy in the Community Property States

AuthorCharlotte K. Goldberg
PositionProfessor of Law, Loyola Law School, Los Angeles, B.A. Connecticut College, 1966, J.D. Georgetown University Law Center, 1978
Pages1-19
Opting In, Opting Out: Autonomy in the Community
Property States
Charlotte K. Goldberg
INTRODUCTION
“Sharing” is the concept that defines marital property in
community property states.1 It means that property acquired during
marriage is presumed to be community property unless proved
otherwise.2 It means that the earnings of either spouse are owned
by the community, not the working spouse. It also means
management and control of community property is shared.3 Many
couples do not even consider the community property
ramifications of marriage. Marriage means opting in to the
community property system, for better or worse. But, for some
couples, community property concepts do not match their view of
their financial life together. For those couples, there are many ways
of opting out of the community property system even if sharing is
legislatively mandated in community property states. Those ways
of asserting their autonomy within their relationship may garner
various degrees of success.
Why would some couples want to opt out? Mainly, it reflects a
different view of marriage than that adopted in community
property states. They have grown up with the idea of autonomy—
the ability to be independent and make independent decisions
about their lives. Imagine a couple considering marriage and each
has a professional career. They value their work and view their
earnings and success as a product of their hard work. If they marry,
they want to retain the right to own and manage those earnings
Copyright 2011, by CHARLOTTE K. GOLDBERG.
Professor of Law, Loyola Law School, Los Angeles, B.A. Connecticut
College, 1966, J.D. Georgetown University Law Center, 1978.
1. For example, the California Family Code defines “community property”
as “all property, real or personal, wherever situated, acquired by a married
person during the marriage while domiciled in this state.” CAL. FAM. CODE §
760 (West, Westlaw current through Jan. 2011 amendments).
2. Statham v. Statham, 986 So. 2d 894, 898 (La. Ct. App. 2008) (“Things
in the possession of a spouse during the existence of a regime of community of
acquets and gains are presumed to be community, but either spouse may prove
that they are separate property” (citing LA. CIV. CODE ANN. art. 2340 (2009))).
3. E.g., CAL. FAM. CODE § 1102(a) (West, Westlaw current through Jan.
2011 amendments) (“[E]ither spouse has the management and control of the
community real property . . . but both spouses . . . must join in executing any
instrument by which that community real property or any interest therein is
leased for a longer period than one year, or is sold, conveyed, or encumbered.”).
2 LOUISIANA LAW REVIEW [Vol. 72
independently. In addition, they may have run the numbers and
found that, because of the so-called “marriage penalty,” marriage
is not a tax advantage.4 Another couple may be considering a
second marriage after having had a bitter and divisive battle over
community property in their first marriages. They now understand
the difference between community property and separate property
and prefer that their earnings be considered separate property.
Also, they may want to protect those earnings as an inheritance for
their children from a prior marriage. Another couple may be
considering marriage where one is considered “economically
superior.” That person may be concerned that his/her prospective
spouse is more interested in that person’s wealth rather than his/her
other sterling character traits. Even though all community property
states consider property owned before marriage as separate
property,5 the economically superior spouse may want that
understanding spelled out, and would especially want an explicit
separation of property agreement concerning earnings during
marriage. Another couple just may not be able to accept the
principle of sharing. The following stereotypes come to mind: the
wife staying at home, eating bonbons, and reading romance novels,
or the husband staying at home, drinking beer, and watching sports
on TV. For some, those stereotypes conjure up the image of the
“at-home” spouse reaping the benefits of the “working spouse’s”
efforts. Therefore, in all these scenarios, those couples may
consider opting out of the community property system of sharing.
This article examines various options for couples who opt in or
opt out of the community property system. These options may be
informal or formal, by inaction or by action. Particular attention
will be given to the community property systems in California,
Louisiana, and Washington.6 The discussion is divided into three
sections. The first section examines the decision to marry or not to
marry. Some couples may think an informal, marital-like
4. The “marriage penalty” is:
The difference between the greater income-tax liability owed by a
married couple filing a joint income-tax return and the lesser amount
they would owe had they been single and filed individually. A marriage
penalty exists whenever a married couple is treated disadvantageously
under a tax code in comparison with an unmarried couple.
BLACKS LAW DICTIONARY 106263 (9th ed. 2009).
5. E.g., CAL. FAM. CODE § 770(a) (West, Westlaw current through Jan.
2011 amendments) (“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 . . . . ”).
6. The other traditional community property states are Arizona, Idaho,
Nevada, New Mexico, and Texas.

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