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What is considered separate property in a California divorce?

On Behalf of | Mar 23, 2021 | Property Division

The division of a divorcing couple’s assets can be a major part of a California divorce. Even though the state recognizes community property, assets must be inventoried and classified as either marital or separate. Marital property is subject to division during a divorce, while separate property remains the property of its owner once the marriage is over.

Separate property can be identified through several different ways, and this post will explore them generally. This post is informational and should not be read as legal advice. All property division questions related to divorce can be answered by trusted California-based family law and divorce attorneys.

Ways to identify separate property

Separate property seems like an easy concept to define. However, because property owned by one partner may become mixed or shared with the other during a marriage, it may lose its identity as separate and become marital over time. Separate property may be identified if it fits into one of these categories:

  • It was owned by one partner before the marriage;
  • It was given by gift or inheritance to one partner before or during the marriage;
  • It is identified as separate property a prenuptial agreement;
  • It was awarded to one partner in a court case; or
  • It was purchased with separate assets.

As mentioned, separate property can cease to be separate and may become marital if it is comingled or used for marital purposes to the extent it can no longer be identified as separate.

Property division in a community property state

Once a divorce proceeding has determined what property is separate and not subject to division, all marital property will be divided evenly, or in a 50-50 split, between the parties. It is therefore imperative that property is properly classified and grouped so that it is not inadvertently added to or left out of the marital property group. A knowledgeable California-based attorney can help their client establish appropriate property division classifications to protect their interests during their divorce.