Steven Fernandez |

Assets, Divorce Process, Property Division

How to Handle Separate Property During a DivorceIn every California divorce, all community property must be divided equally between the two spouses. Community property is all property acquired during the course of the marriage, but prior to separation.

Separate property is property not subject to California’s community property rule in divorce. Property is considered separate when it is:

  • acquired prior to marriage,
  • after separation, or
  • acquired during the marriage through certain kinds of gifts or inheritances for one named spouse.

How you handle your separate property during a divorce can affect how much of it you walk away with. Ideally, you will have kept your separate property:

  • in a separate bank account in only your name, or
  • in some other state where your spouse did not have access to it or had their name attached it to.

This would ensure the property was not mixed, or commingled, with the community property. When property mixes like this, it can be harder for you to make a claim for separate property. In some cases, you may not be able to demonstrate a piece of property was separate at all. For this reason, it is always best to think ahead and do what you can to make sure your separate property is only accessible by you.

Especially during a divorce, do not use separate funds for any community purposes. It may be tempting to use separate assets to cover the extra costs of the divorce. This may be problematic. The burden of proof is on you to demonstrate that any given piece of property is solely yours. If you use your separate funds for community purposes, you may have given up your sole ownership of them for good. A skilled attorney will know how to provide this proof to the court.

If you wish, you can give or transfer ownership, also called transmuting, of your separate property to your spouse. Even if your spouse has no rightful claim to it, as your separate asset, you can do what you want with it in a divorce.

When dividing your debts and assets in your divorce, you will be asked to disclose community and separate property alike in your schedule of assets and debts. Your separate property will not be included in the process of dividing the community property. However, it still must be disclosed to paint an accurate portrayal of the financial circumstances of both spouses.

For example, a large trust fund that is separate property won’t be divided in the divorce. However, it changes the asset profile of the spouse who holds it and this can affect support orders and other aspects of property division. Speak to a family law attorney experienced in complex property division if you have significant separate property or have property that may be a mix of community and separate property.

Are you in the Los Angeles area and have questions about handling your separate property? Certified Family Law Specialist Mark H. Karney has experience representing high net-worth individuals and handling complex divorces in Los Angeles County. Serving the Los Angeles and Beverley Hills area, Mark H. Karney offers efficient and tenacious legal counsel and can ensure your separate property is kept separate. Call our office at (310) 393-0236; email us at intake@cfli.com or contact us through our online form today to schedule a free consultation.

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