California Family Code § 2604 – Award of Community Estate to One Spouse When Other Spouse Is Missing

Plain-Language Summary

What It Says: Family Code § 2604 allows a court to give all of the marital community property to one spouse in a divorce or legal separation if two conditions are met: (1) the total net value of the community estate is under $5,000, and (2) the other spouse cannot be found despite reasonable efforts. In simple terms, if the couple’s assets are very small and one spouse has gone missing (and can’t be located with diligent search), the judge can award 100% of those assets to the spouse who is present.

How It Works: This is an exception to the usual 50/50 split of community property in California. Normally, all community property (assets acquired during marriage) is divided equally. But under § 2604, when the community estate is worth less than $5,000 and one spouse cannot be located, the court can deviate from the equal division rule. The spouse asking for the property must show proof that they tried hard to find the missing spouse (for example, attempted service of divorce papers by publication, checking last known addresses, contacting relatives, etc.). If the court is satisfied that the absent spouse truly cannot be found after diligent search, and the assets are minimal, the court can award the entire community estate to the spouse who filed for divorce. The court may also impose any conditions it deems proper in the judgment when doing so (for instance, to protect the missing spouse’s rights if they resurface).

Why This Rule Exists: This provision helps avoid complicated proceedings over a very small amount of property when one spouse has effectively disappeared. It allows the divorce to be finalized and the property to be distributed rather than leaving a tiny community estate in limbo. In essence, it prevents a situation where a spouse who cannot be found halts the division of a minor estate. However, because the dollar amount is very low ($5,000) and a genuine search for the missing party is required, this rule is used only in limited circumstances (typically default divorce cases where one spouse never responds or cannot be served).

Real-World Examples

Spouse Vanishes with a Tiny Estate: John files for divorce from Jane. The only community property they have is a joint bank account with $3,500. After filing, Jane disappears — John and even a private investigator cannot locate her through any known address or contact. John serves her by publication in the newspaper, but she still doesn’t respond. Because the total community assets are less than $5,000 and Jane cannot be found despite diligent efforts, the court, under Family Code § 2604, can award the entire $3,500 to John in the divorce judgment.
Small Assets and Missing Partner: Alice and Bob separate after a short marriage. Their community property is limited to a $2,000 savings account and some household items. Bob attempts to file for divorce, but Alice left the state and no one knows her whereabouts. Bob tries contacting Alice’s family, searches public records, and even posts notice in newspapers, but Alice doesn’t turn up. In granting the default divorce, the judge finds that the community estate is under $5,000 and Alice cannot be located with reasonable diligence. The judge uses § 2604 to award all of the community property (the $2,000 and the few assets) to Bob, allowing the case to be closed without delay.

Key Cases Interpreting Family Code § 2604

In re Marriage of Brigden (1978) 80 Cal.App.3d 380 – This California Court of Appeal decision acknowledged the rule now in § 2604 (at that time, it was in former Civil Code § 4800(b)(3)). The court noted that when the net community estate is below $5,000 and one spouse cannot be found despite diligent search, the law permits awarding the entire community property to the other spouse on whatever conditions the court sees fit. In Brigden, the court discussed this provision as an exception to equal division, although it ultimately didn’t apply in that case because the community estate was much larger than $5,000 and both spouses were present. The mention in Brigden confirms that California courts recognize this small-estate exception for missing spouses.
No Direct Case Dispute: It’s worth noting that there are very few published cases focusing on Family Code § 2604, likely because it usually comes up in uncontested default divorces (where the missing spouse isn’t present to appeal). The rule is straightforward, and as long as the court is convinced the spouse cannot be located and the estate’s value is under $5,000, the provision can be applied. Brigden remains a key reference that explains the legislative intent behind this exception, even though the scenario was not directly at issue in that appeal.

Full Text of Family Code § 2604

§ 2604. If the net value of the community estate is less than five thousand dollars ($5,000) and one party cannot be located through the exercise of reasonable diligence, the court may award all the community estate to the other party on conditions the court deems proper in its judgment of dissolution of marriage or legal separation of the parties.

Disclaimer: This summary is for general informational purposes and does not constitute legal advice. Laws and their interpretations can change, and application of law can vary based on specific facts. For advice on your situation, you should consult a licensed attorney.