“Fam. Code, § 760 provides that “[e]xcept as otherwise provided by statute, all property real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” Thus marriage and domicile are essential before an asset fits the statutory definition of community property.
The validity of a marriage is determined by the law of the state where the marriage is entered into. [In re Marriage of Smyklo, 180 Cal. App. 3d 1095, 226 Cal. Rptr. 174 (1st Dist. 1986)] The basic requirements of a valid marriage in California are: (1) capacity of the parties to consent to marriage; (2) consent; (3) a marriage license; and (4) solemnization. [Fam. Code, §§ 300 to 594]
The classification and division of property is governed by the law of the domicile of the parties at the time of the property’s acquisition. [Rozan v. Rozan, 49 Cal. 2d 322, 317 P.2d 11 (1957); Grappo v. Coventry Financial Corp., 235 Cal. App. 3d 496, 286 Cal. Rptr. 714 (1st Dist. 1991)] Until the development of “quasi community property”, California community law principles only controlled the disposition of property acquired while spouses were domiciled in California. “Community property” remains defined as property, wherever situated, acquired while the parties are domiciled in this state.
A person’s domicile is “a place where a person lives or has his home, to which, when absent, he intends to return, and from which he has no present purpose to depart.” [Aldabe v. Aldabe, 209 Cal. App. 2d 453, 26 Cal. Rptr. 208 (3d Dist. 1962)] The absence of “purpose to depart” and “inten[t] to return” is what distinguishes “domicile” from “residence.” Cases involving military personnel who are required to move to different states frequently raise interesting issues regarding domicile. While one or both parties to a military marriage may fulfill the six-month residency required to commence a dissolution action, the military member may assert domicile in another state. A military member’s domicile is presumptively the state from which he or she entered the military. [In re Marriage of Hattis, 196 Cal. App. 3d 1162, 242 Cal. Rptr. 410 (4th Dist. 1987)] The presumption may be rebutted, however, and military personnel who enter the service from California frequently assert an attachment to another state, with the intent to remain indefinitely, when faced with the prospect of a community division of military retirement. Proof of domicile can be difficult in such cases. Any indicia of an intent to remain permanently in a place may be considered, such as voting registration, home ownership, payment of taxes, school registration, or vehicle registration.”
[California Civil Practice Family Law Litigation [certain citations omitted]]
