Separate Property Rights

Separate Property Rights

There are three steps in dividing property in a divorce action:

Characterization determines if the property is community property, separate property, or quasi-marital property.

Valuation assigns a value to the property either by appraisal or agreement.

Division determines how the property is divided between the parties.

Any property that is acquired before marriage is a spouse’s separate property. For the property to remain separate, the spouse must keep it apart from marital or community property; that is, s/he would keep it entirely in his/her name. Once the separate property has been commingled (mixed) with marital or community property, it becomes part of the marital property. Any property or assets acquired during the marriage are presumed to be community property.

“Separation” requires more than a rift in the spouses’ relationship. The date of “separation” occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship.

An individual’s earnings after separation, whether by court order or mutual agreement, are considered separate property, not community property. Additionally, separate property can include any value added to this property including rent, interest, and profits. Any personal gifts or inheritances that were gained during the marriage are usually considered separate property as well.

Community Property

Money either spouse earns during marriage.

Things bought with money either spouse earns during marriage.

Separate property that has become so mixed with community property that it can’t be identified.

Separate Property

Property owned by one spouse before marriage.

Property given to just one spouse.

Property inherited by just one spouse.

These rules apply no matter whose name is on the title document to a particular piece of property. For example, a married woman in a community property state may own a car in only her name — but legally, her husband may own a half-interest. Married couples don’t have to accept the rules about what is community property and what isn’t. They can sign a written agreement that makes some or all community property the separate property of one spouse, or vice versa.