We have written many times on this blog that California follows the “community property” model of asset division in divorce. Stated simply, this means that most assets acquired by either spouse during the marriage are considered community property (jointly owned) and are subject to equal division in divorce.
As with nearly all legal matters, this issue is more complex in practice and is marked by numerous exceptions and caveats. In today’s post, we will discuss which assets are likely to be considered separate property and under what circumstances that may change.
Assets acquired prior to marriage or after separation
Assets acquired by either spouse prior to marriage are considered separate. However, some of these can become community property fairly easily unless steps are taken to avoid commingling them with marital assets. This is one reason why prenuptial agreements are a popular option for couples entering marriage with significant separate assets.
If a couple separates prior to divorce and there is a clear date of separation, many assets acquired after that time will also be considered separate.
Some assets acquired during marriage can be separate
There are certain assets acquired during the marriage that may be considered separate. Examples include:
- Payments from a will or trust to which one spouse is a named beneficiary
- An inheritance given to only one spouse
- Gifts intended for one spouse
To generalize, assets that were earned by either spouse during the marriage are likely to be considered community property. Assets that were gifted or otherwise unearned would likely be considered separate, so long as the receiving spouse took steps to keep them from becoming community property.
Remember: Assets can change or be recharacterized
The source of an asset is only one consideration in whether it is considered community property or separate property. You also need to examine whether either spouse took actions that may have changed the character of the asset.
If you are about to go through the divorce process, the good news is that you do not need to figure this out on your own. An experienced family law attorney can help you correctly identify and characterize all property, and can seek to have certain property recharacterized, as needed.
