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How Can I Keep My Property Separate in a Marriage?

In a divorce, your property’s categorization is a big part of how it is divided. Specifically, a court will look at two different classifications: marital property and separate property. Marital property is anything you jointly own with your spouse. Separate property belongs to you alone.

These categories are directly related to how you acquire your property. Marital property originates within the marriage. Anything you purchase while married is marital property, as are the gifts that spouses give each other.

Separate property originates outside of the marriage. This includes anything you owned before the marriage, inheritance, and gifts from people other than your spouse.

Generally, separate property should remain separate, meaning you should be able to keep it outright after your divorce. Sometimes, however, separate property becomes co-mingled. A co-mingled asset begins as separate, but over time, your spouse may be able to claim partial ownership of it.

Here are some tips for keeping your property separate, free from your spouse’s claims of co-ownership.

Don’t Allow Your Spouse to Contribute to the Asset

Contribution is a big part of how separate property becomes co-mingled. For instance, imagine you start a business while married. If you build that business without any help from your partner, you have a strong claim that it is separate property.

Co-mingling happens when your spouse helps in any way. For instance, if they support you financially while you build your business, they may have a reasonable claim for partial ownership. Perhaps they contribute ideas or work for the business without getting paid. This could also entitle them to some part of the company.

If you’re worried about your separate property becoming co-mingled, keep it to yourself. If you inherit land, don’t let your spouse work or build on that land. When a friend gives you a gift, don’t allow your spouse to do something that might increase its value. While you’re creating a business or an intellectual property, don’t take suggestions from your spouse. Make sure you are the property’s only user and contributor, and you may be able to keep it separate.

Keep Track of Your Spouse’s Opposition to the Asset

A court must sort out co-mingled property. Your job is to prove that the property should remain separate. As part of your case, you can show the court how your spouse directly inhibited the asset. Maybe your spouse decided to remodel your home, and that house’s value plummeted. Perhaps your business was thriving, but once your spouse got involved, its profits declined.

You can also provide examples of your spouse’s direct opposition to the asset. For instance, they may have constantly nagged you to sell it or get rid of it. Perhaps they even directly, intentionally sabotaged the asset.

Co-mingled property is complicated, especially in a California divorce. California attempts to divide property equally, giving each spouse 50% of the marital assets. When there is uncertainty over an asset’s ownership, problems arise. Make sure to work closely with your lawyer, building a credible, solid argument for why your property should remain separate.

If you’re concerned about keeping your separate property safe, call (916) 299-3936 today and speak to one of our dedicated team members. You may also use our online contact form to schedule time with us.