Separate Property Designations Makes Getting Divorced a Complex Process

In most states the problem of separate property doesn’t really create many problems when a couple is getting divorced: what you brought into the marriage remains yours regardless. However, in a community property divorce the process is much more complicated, especially if the property has become commingled during the course of the marriage. It is important to understand the difference between separate and community property before you think about getting divorced because lack of knowledge involving the marital property can cause delays in not only the initial filing of the divorce but also the final agreement and ultimately the divorce decree.

Separate property is one of the most difficult things to understand for those getting divorced in community property states. It is easy enough to understand that each person still retains ownership of anything they owned prior to the marriage provided no marital funds were used to enhance that or increase the value of the asset. Even savings accounts you held prior to marriage remain your separate property as long as you do not add to those funds during the course of your marriage. However, once you use any marital property to add funds to those accounts, it then becomes community property that is subject to a 50/50 division in the process of getting divorced.

What property is separate rather than community property? There are several things that fall into this category:

Property you received as a gift that is intended solely for your benefit.
Property that came into your possession from an inheritance.
Any property you owned prior to your marriage that has not increased in value by using any marital property up to and including joint checking or savings accounts, pay checks, interest from jointly held investments and other similar sources of funding.

Many people are under the misconception that any property they held prior to marriage automatically remains theirs if they end up getting divorced, but this is not always the case. There are ways you can protect those separate assets in the event of divorce such as a pre-nuptial or post-nuptial agreement that outlines the specifics. However, you still have to be careful with these agreements because in the event your net worth increase substantially, your spouse may contest the agreement, and you are at the mercy of the court.

In the case of separate property that becomes commingled or when a couple files a transmutation agreement that changes community property to separate property or separate property to community property, the need may arise for one to prove to what extent he or she contributed to the value of that property. Another complication that can arise is in the case of quasi-community property or property that one party acquired while living in a non-community property state that would be community property if the person was living in a community property state at the time of its acquisition. Getting divorced under community property provisions can be very complicated and should never be attempted without the benefit of a divorce lawyer experienced in those laws.

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