How Can I Protect My Separate Property in a California Divorce?

Are you currently planning for a divorce in the Santa Clara or San Mateo County area and concerned about protecting your property? Many spouses come to their marriages with separate property, and they want to be certain that they will retain ownership of that property in the event of divorce. While the creation of a premarital agreement (also known as a prenuptial agreement) is one of the best ways to ensure that your property is appropriately classified as “separate” property and is not subject to distribution in your divorce, there are several other options you can consider if you did not enter into a prenuptial agreement with your spouse.

Consider the following information, and do not hesitate to reach out to our firm to learn more about how we can help you with property concerns.

What is Separate Property in California?

To understand how to protect separate property, it is important to understand how California law defines separate property versus community property.

Under Section 760 of the California Family Code, “except as otherwise provided by statute, all property, real or personal, wherever situation, acquired by a married person during the marriage while domiciled in this state is community property.” Conversely, under Section 770 of the California Family Code, separate property includes all property owned prior to marriage, acquired after marriage by gift, bequest, devise, or descent, and the rents, issues and profits from such separate property is also considered separate property. Community property is divided equally between the spouses in a divorce while separate property is not divided and remains with the individual spouse who owns or is responsible for that property. Property acquired during marriage is presumptively community property and the party who is claiming an asset is their separate property holds the burden to prove such claim.

What Can I Do to Protect My Property?

If you do not have a premarital agreement concerning your property, you can still take steps to protect your separate property to ensure you can prove your separate property claim in the event of divorce.

First, it will be important to work with an attorney to determine whether the property you seek to protect is separate property as defined by the California Family Code. Depending on the date the property was acquired and whether there was comingling that occurred, you may not have an issue ensuring that the court properly classifies the property as your separate property. If the property was acquired prior to your marriage or after your separation, or during marriage by gift or inheritance, and as long as no commingling occurred with community property, that property can be proven as your separate property by proper record keeping. You can ensure protection by gathering documentary evidence of the purchase date, account statements from date of marriage throughout the duration of your marriage, and other materials that prove the property is not “community property” subject to division under the California Family Code. Proper and complete recording keeping throughout your marriage can prevent issues with proving separate property claims down the road.

In cases where property was commingled, or where separate property came into your possession during the marriage, you may want to consider one or more of the following potential options:

Consider a postnuptial agreement during marriage;
Discuss the possibility with your attorney of bringing a financial advisor onto your divorce team to trace out commingled property; and
Gather documentation of any assets that may have been designated specifically for you even if acquired during the marriage, such as an inheritance or gift.

Contact a Santa Clara County and San Mateo County Divorce Attorney Today for Assistance with Your Divorce and Matters Related to the Classification and Distribution of Community Property

Going through a divorce is often one of the most difficult and emotional experiences of a person’s life, even in a best-case-scenario divorce. As such, it is important to plan ahead as much as you can, and to take steps to protect yourself and your property during the divorce case. Whether you have concerns about protecting your own separate property, or you have questions about the specific classification of separate versus community property in California, one of the experienced Santa Clara County and San Mateo County divorce lawyers at Foster Hsu, LLP can assist you. Contact our firm today so that we can answer your questions about property division and divorce.

Sources:

law.justia.com/codes/california/code-fam/division-4/part-2/chapter-1/section-760/

law.justia.com/codes/california/code-fam/division-4/part-2/chapter-2/section-770/