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What is the difference between marital and separate property?

On Behalf of | Oct 27, 2022 | Family Law |

When two people come together in a marriage, each party will bring property and assets into the marriage. If that marriage later ends in divorce, it is up to the parties to determine who brought what into the marriage, and who will leave with what. The first step is to classify assets as community property or separate property.

Classifying separate property

Assets that were brought in prior to the marriage can be considered separate property and the individual who brought this property into the marriage can attempt to prevent it from being part of the distributed assets. Some examples of separate property include:

  • Inheritances given to only one spouse
  • A car purchased by one spouse prior to marriage
  • A gift given to only one person

Classifying community property

Property that was acquired during the marriage is considered community property under California law. This means both spouses have an equal claim to all the property, but it doesn’t necessarily mean they will divide it equally in a divorce.

Even property that was brought into the marriage can become community property if it becomes commingled. This can happen in many ways, particularly when community property funds are used to improve upon the property or contribute to the asset in some way.

Community property may include:

  • Marital home
  • Vehicles
  • 401(k)s
  • Insurance proceeds
  • Pensions
  • Retirement accounts

If the court is making the decisions about property division, it will determine which property should be classified as marital, and then work to decide who gets what. Many factors will be considered including income levels and earning potential.

More commonly, the spouses themselves will negotiate how to divide their property.

If you are concerned with how your property will be divided in your divorce, consider consulting with a divorce attorney as soon as possible.