In California, property division during a divorce follows the principle of community property, which means that any property acquired during the marriage is generally considered jointly owned by both spouses and is subject to equal division. However, separate property is treated differently.
What is Separate Property?
Separate property refers to property that one spouse owns individually and is not subject to division during a divorce. There are two main types of separate property in California:
- Property owned before the marriage: If one spouse owned property prior to getting married, that property is generally considered separate, as long as it hasn’t been commingled with community property.
- Gifts and inheritances: Property acquired during the marriage by gift or inheritance is considered separate property, as long as it remains solely in the name of the receiving spouse and is not mixed with community property.
How to Prove Separate Property
In order for a spouse to claim property as separate, they must provide evidence that it was acquired before the marriage or through inheritance/gift. This can include:
- Bank statements or records showing when the property was purchased.
- Deeds or titles that show ownership prior to the marriage.
- Records of gifts or inheritances specifying that the property was intended for one spouse.
Commingling of Property
Property can become commingled when separate property is mixed with community property. For example, if one spouse uses separate funds to purchase a home but then both spouses contribute to the mortgage, the home may become a mixture of community and separate property. In such cases, the court may use a tracing method to determine what portion of the property is separate and what portion is community property.
Divorce and Division of Separate Property
In California, only community property is divided between the spouses in a divorce. Separate property remains with the spouse who owns it, as long as there is sufficient proof that the property is separate. However, if there was any commingling or unclear boundaries, the court may need to assess the value of the property and how it should be allocated.
Final Notes
- Debts: Just like property, debts acquired during the marriage are typically considered community property and divided equally. However, separate debts (those incurred before marriage or by one spouse alone) remain the responsibility of the spouse who incurred them.
- Prenuptial or Postnuptial Agreements: These agreements can alter the standard division of property and may designate what is considered separate property or how property will be divided.
If you are going through a divorce in California and dealing with separate property, it may be important to consult with an attorney to understand how the laws apply to your specific situation and to help ensure your rights are protected.