The difference between marital and separate property

Knowing the difference between marital and separate property may be helpful in dividing property in a divorce.

When couples file for divorce in California, there are a host of issues that must be negotiated before the marriage can be terminated. One of the most difficult may be separating the marital property and assets that have been accumulated throughout the marriage. California is a community property state, meaning that all marital property and assets are divided equally in half between spouses. There are, however, other factors that are used to determine who gets what in the divorce settlement. First, it is crucial to identify the differences between marital and separate property to determine what each party is entitled to in the decree.

What is marital property?

Otherwise referred to as community property, marital property includes everything that the couple amassed while they were married. While many people think of homes, vehicles, bank account holdings and furniture, there are a wide-range of items that are considered marital. These include the following:

  • Expensive art, jewelry, antique and car collections.
  • Golf and country club memberships.
  • Money earned in stocks, retirement and other types of investment accounts.
  • Lottery ticket winnings and tax return refunds.
  • Gifts given to each other.

Any money that was lent to a third party while the couple was married, is considered marital and should be divided once the amount is repaid.

A look at separate property

There are some items that may not be eligible for division in a divorce settlement. Separate property are items that a person owned prior to entering into marriage. For instance, a property owned by either spouse before the marriage may stay with the original owner even after the divorce. In order for this to occur, however, the property owner must be the sole name listed on the title. If the owner revises the title to include both spouses' names, the property may be marital and therefore divided in the divorce.

Other items that may be considered separate include inheritance given to either party before, during or after the marriage, as well as third-party gifts given to either spouse. Personal injury compensation is also labeled as separate property. If the money is deposited into a joint bank account, it may become community property.

Simplifying the process

When you are going through a divorce, you may face complicated issues that can often become overwhelming. A family attorney in California may help to simplify the divorce process, and keep your best interests in mind throughout the separation. A lawyer may help to answer any questions you may have and help you explore your legal options.