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What is someone’s separate property in a California divorce?

On Behalf of | Feb 18, 2024 | Property Division

Most people feel anxious when they consider dividing their property during divorce. As a community property state, California requires that spouses treat their marital assets as shared resources in most cases. It can take quite a bit of effort to successfully divide marital property during a California divorce. People fight over what certain assets are worth and over who should physically retain specific property.

Some challenges can arise before spouses even begin negotiating how to divide their property. They must first disclose the totality of their marital estate and also declare their separate property to one another. Separate property is typically not at risk of division during California divorce proceedings. It belongs solely to one spouse and is not part of the marital estate.

Assets owned prior to marriage

According to California family law statutes, the assets owned by either spouse before they legally married one another typically remain their separate property if they divorce. Unless someone officially established joint ownership with their spouse or otherwise commingled their prior possessions with marital resources, they can retain the assets they owned prior to marriage if they divorce.

Gifts and inherited property

State statutes in California also clearly establish that assets gained through inheritance or as gifts from other people even during the marriage are typically the separate property of the spouse who received said gifts.

As with assets owned prior to marriage, keeping gifted and inherited resources separate from the marital estate can sometimes be an important component of protecting them from the risk of division in a future divorce. People can also declare any rent or other income generated by separate property as their separate property.

Assets protected in a marital agreement

Engaged couples sometimes designate certain property as separate assets in prenuptial agreements. Married couples might even make similar designations in a postnuptial agreement. Those with valid and enforceable marital contracts can potentially prove that certain assets are their separate property for the purposes of asset division.

Gathering documentation to establish that certain assets are separate property may help someone take some of the uncertainty out of property division proceedings during a California divorce.