Community property is generally considered everything that a couple earns or acquires during their marriage – unless you have agreed upon and stated differently in a prenuptial or postnuptial agreement. However, a spouse can have separate property that does not become community property even after getting married.
What Property Stays Separate?
A spouse’s separate property can mainly consist of the following:
Property owned before the marriage.
Property given to one spouse as a gift, inheritance, bequest, or devise.
Property acquired during the marriage in one spouse’s name only and obtained with the use of separate property, such as money from an inheritance, and with the explicit purpose of keeping that property separate.
Any property or debts specified as separate property in a legally enforceable contract (e.g., prenuptial or postnuptial agreement)
A substantial amount of debt accrued before the marriage.
If your property is divided by the court, as they define which assets are community property and which are separate property, they will consider when and how the asset was acquired and whether the assets were obtained together or separately.
How Separate Property Can Become Community Property
Separate property can quickly change into community property if the asset is commingled with marital assets. For example, if one spouse receives a large sum of money as an inheritance in their name but places that money in a joint bank account, then that inherited asset immediately becomes commingled. That means the asset that began as separate property has converted to community property, at least partially.
Another example is if one spouse buys a house in their name using separate funds (money from an inheritance), but their partner makes significant repairs or puts a large amount of money into the home, helping increase the property’s value. To some extent, that home changes status from separate property to community property.
When commingling does occur, it can be very challenging for a spouse to prove an asset is separate property. In a divorce, commingled property will be examined and distributed on an asset-by-asset basis. If an asset has become mixed in with marital property to the point that it cannot be traced back to when the assets were separate, it will be considered community property, making it subject to division.
How To Protect Separate Property From Division
Here are some of the steps that can be taken to protect separate property in a divorce:
Prevent Commingling: From the beginning, avoid commingling separate assets. Set up separate accounts and document every transaction, withdrawal, and transfer.
Checklist: Create a list that outlines all of your separate and marital assets to give you a clear idea of the assets you believe are not subject to division.
Find Proof: Unfortunately, arguing that an asset is separate property will not work. The spouse claiming property as separate has the burden of proof to provide evidence of that fact. The key to establishing separate property is documentation that shows a paper trail tracing back the asset to when it was acquired. The tracing process can be complex, and in some cases, it will be in your best interest to hire a forensic accountant who is an expert in tracing.
Hire an Attorney Proficient in Property Issues
If you are facing property division issues in a divorce, contact Twyford Law Office. Our property division attorney in Spokane can provide you with the guidance and assistance you need to successfully fight for your property. Message us online or call (509) 327-0777 for your free consultation today.