What is Separate Property?
When you get a divorce in California, your spouse does not have an interest in your separate property, and the Court cannot divide separate property as part of your divorce. On the other hand, community property is divided equally. But how do you know if your property is separate or community? Ask yourself the following questions to find out:
Did you own it or earn it before you got married?
Under California law, community property is real and personal property acquired by a married person during the marriage while domiciled in California. Therefore, property you acquired before marriage is separate property, not community property. The profits you earn from that separate property is also considered separate property. Property you earned or purchased before marriage but received or benefited from after marriage is also separate property.
Did you inherit it or receive it as a gift?
Property you acquire by gift, bequest, devise, or descent is also separate property. This means that even if a gift was acquired during the marriage, such gift is considered separate property. The court often looks to the intention of the gift giver when it is unclear whether a gift was given to just one spouse or the couple.
Did you earn it after you separated?
Your earnings and accumulations after the date of separation are your separate property. Date of separation is when there is a complete and final break in the marital relations. “Earnings” encompasses wages, salary, and income derived from carrying on a business as a sole proprietor. “Accumulations” means any property that one acquires, regardless of how it is obtained.
What money did you use to pay for it?
If property, whether real or personal, was paid for by separate property funds (e.g. money you earned from before being married, money you received as a gift or inheritance, or after the date of separation), then that property is also characterized as separate property.
If you want to make sure your separate property is kept separate, be sure to keep good records, maintain a separate bank account for separate property, and be sure not to mix separate and community property.