Dividing property during divorce can quickly become one of the most contested parts of the process. California is a community property state, which means that most assets and debts acquired during the marriage are considered jointly owned. However, not everything falls into that category. Some property is classified as separate, and is not subject to division.
At Irwin & Irwin, we help clients understand what belongs to them individually and what must be divided. Knowing how California law defines non-marital property can help you protect your interests during divorce.
What Is Separate Property?
Separate property in California, refers to assets or debts that legally belong to only one spouse. Under California Family Code § 770, the following are generally considered separate property:
- Assets owned before marriage
- Gifts or inheritances received by one spouse, at any time
- Personal injury settlements (with some exceptions)
- Earnings and accumulations acquired after the date of separation
- Property acquired using separate funds, if properly traced
Property Owned Before Marriage
Anything you owned before the date of marriage remains your separate property, so long as you kept it separate throughout the marriage. This might include a car, savings account, or even a home. However, if you commingled the asset with community property, such as adding your spouse’s name to the title or using joint funds to pay down the mortgage, you may need to trace back your original contribution to protect your share.
Gifts and Inheritances
If you received a gift or inheritance in your name only, either before or during the marriage, and kept the money separate, it remains separate property. This applies whether the gift was from a friend, relative, or even your spouse. For example, if your parents left you money in their will and it was kept in a separate account, that money is generally yours alone.
Personal Injury Awards
Money from a personal injury settlement may be considered separate property, depending on the settlement agreement language. That said, if part of the award compensated for lost wages during the marriage, or if the funds were used for community expenses, the situation becomes more complex. The court may divide a portion of the settlement depending on how the funds were used and what the funds were allocated for.
Property Acquired After Separation
Once you and your spouse have separated, generally, any earnings or property you acquire after that date is considered separate property. The date of separation has legal importance and must be clearly established. In California, separation occurs when at least one spouse expresses intent to end the marriage and acts consistently with that intent, such as moving out or filing for divorce.
Using Separate Property to Buy or Maintain Community Assets
If you use separate funds to pay for something that benefits both spouses, such as the mortgage on a jointly owned home, you may be entitled to reimbursement. In these cases, documentation and clear records are essential. Without proof, the court may treat the contribution as a gift to the community.
When Separate Property Becomes Community Property
Some property that starts out as separate can become community through commingling. For example, depositing an inheritance into a joint bank account or adding a spouse’s name to the title of a home may change how the court views ownership. When this happens, it may be necessary to hire a forensic accountant or use legal tracing to determine how much of the asset remains separate.
Documentation Matters
One of the most effective ways to protect separate property is to keep it separate, both legally and financially. This means:
- Avoiding joint ownership of separate assets
- Keeping separate accounts for inherited or gifted funds
- Saving financial records and titles
- Not using community funds to maintain separate property without a clear agreement
If you do not have documentation, the court may presume the property is community and divide it accordingly.
Get Legal Advice Before Making Assumptions
It is common for spouses to disagree over whether certain assets are separate or community. These disputes can significantly impact the outcome of your divorce. At Irwin & Irwin, we work closely with clients to review financial records, evaluate property claims, and protect assets that rightfully belong to them.
If you have questions about what qualifies as separate property in your California divorce, contact Irwin & Irwin, LLP to schedule a consultation. We represent clients throughout Orange County, Los Angeles County, Riverside County, and parts of San Bernardino County.