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What Qualifies as Separate Property in a Divorce?

Within a marriage, California clearly defines two different types of property: marital and separate. Marital property is shared equally among spouses, and separate property belongs to only one person.

The main difference between the two is when and how property is acquired. Marital property is anything that was purchased while you were married. Even if you bought it with your money and it was never intended to be used by your spouse, they still own 50% of the asset.

California courts endeavor to split marital assets equally in a divorce. The goal is to give each spouse 50% of the overall value of the assets. To keep any piece of property, you must make a case for your ownership of that property. You can argue that you were the property’s primary user, or you could explain that your contribution to said property entitles you to it.

If marital property is anything purchased during the marriage, then what makes property separate? There are always minute details and granular specifics within the law, but most states have a generally understood definition of what makes separate property. In this article, we will explore those qualifications, helping reveal what you can expect to keep in a divorce.

Inheritance Is Separate Property

If you are specifically named in a will or trust, the assets you receive from your benefactor are separate property. Essentially, the law assumes that the property was intended only for you, and no one else may lay claim to it.

Assets You Had Before the Marriage Are Separate Property

Anything you owned before you said “I do” can remain yours after the divorce. The law sees no reason to assume that anyone shares this. You and your spouse were not legal family members before the marriage, so that person should have no claim to your old, treasured possessions.

Be careful not to make assumptions about property you had before the marriage. Separate property could be split up if your spouse lays claim to a portion of it. For instance, imagine you are a lifelong comic book collector. You had thousands of issues before your marriage, but you collected many more while you were with your spouse. It’s easy to believe that, in court, you can claim the entire collection as yours. However, your spouse technically has partial claim to any comics you bought while you were married. If so, you must prove you are the rightful owner of the entire collection, and you could be asked to pay your spouse half the value of any comics you purchased while married.

Gifts from People Outside the Marriage Are Separate Property

Just like inheritance, if a friend or family member gives you a gift, the law assumes it is meant for you alone. All gifts are protected by this standard, even those received from an alleged extramarital partner.

The same cannot be said for gifts given to extramarital lovers. Remember, any time you spend money, you are technically using marital, or “community,” property. If you are accused of secretly giving gifts to an extramarital partner, you could lose a greater portion of the assets.

The Problem of Commingled Property

There exists another category of property, one that is less well-defined: commingled property. If your spouse contributes to separate property, they may be able to make a partial claim to that property. That claim could be less than 50%, but it could still impact your ability to keep your assets without conflict.

To see this process in action, let’s look at two examples of commingled property.

Inherited Property

Imagine your parent is a business owner, and they give you the business in their will. If you manage this company on your own, without help or input from your spouse, you can still claim it as separate property. Any money you make from the business, however, would still be part of your income, and that would be considered community property.

Now imagine your spouse gets involved with the business after you take over. They offer ideas to help the business grow. They even do some work for free, not as a paid employee. Any contribution they made to enhance the business could entitle them to claim a portion of it, either in terms of profits or partial ownership.

Property You Already Owned

Let’s say you owned your house before you met your spouse. After you get married, your spouse moves in. Eventually, the marriage doesn’t work out, and you get divorced.

Claiming the home as separate property can be tricky in this scenario. Simply because this house was your spouse’s primary residence, they can claim part ownership of it. The longer the marriage, the more claim they may have.

You must also consider that recurring keyword: contribution. If your spouse added to the homes’ value, they may have grounds to claim partial ownership. Perhaps they managed its upkeep, keeping the place clean and maintained. Maybe they oversaw additions and remodels to the home. In either case, they could successfully argue that they partially own the home.

If you are concerned about keeping your property after divorce, contact our firm for help. We can listen to your side of the story, and we may be able to help you lay claim to your property. Call us today at (916) 299-3936, or reach out to us online.