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What is Separate Property in a Carlsbad Divorce Case?

On Behalf of | Sep 8, 2019 | Divorce

What is separate property in a Carlsbad divorce case?  California is a “community property” state.  This simply means all debts and assets acquired by either or both of the parties during the term of the marriage (with a few exceptions) are considered to be community property and must be divided equally between the parties.

There are three basic types of property to be divided during the proceedings of a divorce in Carlsbad, Oceanside, Encinitas or Carlsbad:

  • Community Property
  • Quasi-Community Property
  • Separate Property

Community property is any debt or asset acquired by either or both of the parties during the term of the marriage.  This can exclude properly structured transactions such as inheritances.  Quasi-community property is any debt or asset you acquired as a couple while living in another state.  Even though you acquired the property or asset while living out of state California will usually consider this to be community property and divide it equally as well.

So, what is separate property in a Carlsbad divorce and how is separate property handled?  Under California Family Law separate property generally includes any properly structured gift or inheritance given to one of the individual parties, property obtained before the marriage occurred, and any property that is acquired after the Date of Separation  in your case.

However, the division of “separate” property may not be as easy as it appears on the surface.  For example, if the wife owned a rental property prior to the marriage one might assume it was the separate property of the wife and she might wish to exclude it from the division of community property during the divorce.

This will be the case if the rental property was managed entirely with separate funds established prior to the marriage, or from the proceeds of rental income or other funds specifically associated with that property which were kept in a separate account.  If the wife wished to sell that property during the marriage and keep all of the proceeds as her own she should have a separate bank account for this purpose and all monies associated with that property should be kept distinct and separated from any joint accounts or other marital funds.

Another common example is marital funds which are used to support an otherwise “separately owned” business or professional practice.  This is where things usually become quite complex.  In many divorce cases the marital funds and assets of the couple are used to maintain the “separate” property of one of the spouses.  By commingling the funds of a married couple with a separate asset, the community obtains an interest in that otherwise “separate” property.  The community now has an interest in the “separate” asset as it has invested funds and is generally deserving to receive the benefit of appreciation, increase in value, profit or other financial gain experienced as a result of the investment of the marital funds.  In some cases the asset may have become community property entirely.

Now a complicated process unfolds to legally assess what is separate property in a Carlsbad divorce and what remains community property.

This is why it is important to work with the experienced and proven Certified Family Law Specialists at Burke and Domercq. We have decades of expertise in complex community property cases including those with commingled funds and others such as interests in a professional practice or business ownership.

Protect your interests and your property. Contact us, or call 760-389-3927 to learn more or schedule an appointment with one of our experienced Carlsbad divorce lawyers.