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What is separate property in a divorce?

On Behalf of | Jan 6, 2023 | Divorce

As people in California go through a divorce, they may look at various aspects of their shared life in depth for the first time. Couples may have a general idea of the various property they both own, have estimates of the amount in various financial accounts as well as estimates on the amount of debt the couple has between them. However, when they go through a divorce they will need to determine the exact value of all of their property and the amount of debt they owe.

This is because they need to divide all of their marital property and debt. California is a community property state, which means that both spouses have equal ownership rights to all of the property obtained by either spouse during the marriage. It does not matter which spouse’s name is on the account or title. In general, if one spouse obtains the property during the marriage, it is marital property with a couple of exceptions.

Property that is separate property

While the parties will divide all of their marital property during the divorce, they may also own what is called separate property. This is property and debt that a spouse owned prior to the marriage or after the separation of the couple. It also includes any property that was obtained during the marriage using separate property to obtain it. People may also be entitled to any gains made from the separate property during the marriage. Finally, separate property also includes any inheritances or gifts that only one spouse receives during the marriage.

While some separate property may be easily identifiable in California, other separate property needs to be traced through accounts. This can be a complicated process. Also, people may co-mingle separate property with marital property, which causes it to become marital property. Properly identifying separate property is very important in divorces and consulting with experienced attorneys could be beneficial.