Divorce: What Do I Get To Keep?
Generally, your “separate property” includes the assets that you owned prior to marriage. Conversely, property which is acquired “by the community” during marriage—commonly the wages you and your spouse earn during marriage—is community property, generally speaking. As is common in the law of divorce, there are exceptions to the general rules. Here are some of them. Hire Best San Diego Family Law Attorney for handling cases and providing quality services related to divorce or child custody.
If you had a bank account with $50,000 in it before you were married, that would be your separate property. During the marriage, if you then began depositing your paycheck into the account, you will be said to have “commingled” separate property funds with community property funds. This will most likely result in the entirety of the account being adjudged community property in a divorce case. The amount which is “yours” would be half of the account.
If you started a business prior to your marriage, that business would be your separate property. But if you continued to work at the business—thereby contributing “community” labor to the business—that analysis becomes a lot murkier.
Depending on the business, it may be clear how much of the business you actually owned (if not a sole proprietorship) and how much your community labor was worth. But what if the business was solely based upon your own good will, such as a solo accounting firm, or a law practice? The value of such a “business” is nothing without your name and labor, and such is virtually impossible to split in half in a divorce case.
Another exception to the general rule of the timing of acquiring assets include property acquired by inheritance or gift, even if this occurs during the marriage. But what if you inherit a house and you and your spouse use your paychecks to pay the mortgage on it? You would be creating a community interest in your separate property house, and an issue for dispute in a divorce case.
Property which is separate property is not subject to division in a divorce. You get to keep it. However, if the property is income producing, that income is likely to be considered “income available for support,” either for your spouse or children.
If you find yourself facing divorce, you need an attorney to guide you through the law to determine how much of the marital estate you are entitled to. Contact divorce attorney Michael C. MacNeil for a consultation today.