In general, property is either personal property or real property. Once a couple marries, other than gifts and inheritances, all personal and real property acquired during the marriage by one or both partners becomes community property unless there is a specific valid agreement to indicate otherwise. Generally speaking, separate property is property that was already owned by the spouse prior to the marriage. And, as stated, gifts and inheritances acquired during the marriage are and remain separate property unless the property is transmuted into marital property
- Money that each individual spouse earns during the marriage is not the separate property of that spouse – it is community property.
- If each spouse purchases a car with the money they earn from their individual jobs, each car is not separate property, but is the joint property of both spouses – it is community property.
Separate Property – Income from Gifts, Inheritances, Other
In addition to gifts and inheritances acquired during the marriage and property that was owned by a spouse before the marriage or domestic partnership, property will be classified as separate in those circumstances when acquired from a previous investment or income producing concern. For example, where a spouse owned a home prior to the marriage and rented it to tenants, the rental income would remain the separate property of the owner-spouse.
- A gift or inheritance that is acquired by a spouse during the marriage will be characterized as the spouse’s separate property.
- Similarly, income that is created from the spouse’s gift or inheritance will also be characterized as that spouse’s separate property.
- Personal injury damage income may be separate property.
- Post-separation income – may or may not be separate property, as per the specific circumstances.
Check with your family attorney – these are broad examples.
Written Agreement Transmutes Community Property into Separate Property:
Section 850 of the California Family Code provides for the transmutation of the classification of property as long as there is valid agreement or transfer. A spouse may:
a) Transmute community property to separate property of either spouse;
b) Transmute separate property of either spouse to community property;
c) Transmute separate property of one spouse to separate property of the other spouse.
Section 852 requires an express declaration that is “made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected (not applicable to transmutations made prior to Jan. 1, 1985).
Contact Neumann Family Law, APC Separate Property Family Law Attorneys, for a Complimentary Phone Consultation:
If you are considering a separation or filing for divorce in San Diego, or if you feel that modifications are in order, or for other family law issues, contact Neumann Family Law, APC. We are articulate and experienced family lawyers who make a difference in our client’s lives. We make ourselves accessible; we respond to your phone calls and emails. We do care and we are able to produce results. For a complimentary telephone consultation with a Neumann Family Law, APC family lawyer, call (619)282-1107, or (760) 480-8400.
