In a divorce, some states divide property equitably, or fairly. California is a “community property” state, meaning it divides assets 50/50 between spouses.
Even when marital assets are equally divided, you can make arguments for why you should keep one thing or another.
Here are some tips for keeping property in a divorce, regardless of your state’s division system.
Prove That the Property is Separate
Generally, divorce courts put property in one of two categories: separate or marital. Marital property is anything acquired during the marriage. Whether we’re discussing a magazine or a house, if you bought it while you were married, 50% of it technically belongs to your spouse.
Separate property belongs to you or your spouse alone. No one else has any claim to it. So, if you have separate property that your spouse has no claim to, make sure you know how to protect those assets.
Here are some ways to prove your property is separate:
You Owned the Property Before Your Marriage
Anything you owned before you tied the knot should be considered separate property. In some cases, proving this will be easy. With a car or a home, for example, there should be an easily accessible record of when and where you purchased the asset. However, if your spouse invested in that asset or did something to increase its value, they may have a claim to it.
Other items could be harder to prove. You probably don’t have receipts for every video game, piece of art, or rare collectible you accumulated over time. A spiteful spouse could come after this property in a divorce. You will need to work closely with your attorney, providing as many details as possible to bolster your argument. If necessary, your attorney may be able to argue that your entire category of property is separate, given that you began accumulating it before the marriage. For instance, they could argue that accounting for every piece in your vinyl record collection is unreasonable, so the whole collection should count as separate property.
The Property Was a Gift from Outside of the Marriage
When a loved one gives you a gift, the law respects the origins of that gift. If it was purchased by someone with no connection to the marriage and it was intended for you alone, you can claim it as separate property. It can also apply to gifts given to you individually.
Again, you should establish the origin of the property. Prove that you didn’t own it before it was given to you. Perhaps there are pictures or social media posts about it that you can use. You may also be able to call your friend or family member in as a witness, verifying that they bought it and gave it to you.
You Inherited the Property
Again, consider the origins and intent behind the property. Inheritance is, essentially, a gift someone gives you after death. It is meant for you alone, and it is given by someone outside the marriage.
Inheritance should have an obvious paper trail. Before property moves on, it goes though probate. Probate officially transfers ownership from the deceased to the beneficiary. If the property came to you through a trust, there should still be a clear record of the decedent’s wishes and the transfer of property to you.
Your Spouse Did Not Contribute to the Property
Imagine you are a business owner, and you started your company before you were married. Now imagine that you didn’t start the company, but a family member gave it to you as a gift or through inheritance.
In any of these scenarios, you should be able to claim this business as separate property. The money you earned went to your family, and that salary will likely count as marital property. The business, however, is yours alone.
Now imagine the above scenarios, only your spouse gets involved in the business. They provide ideas, invest money, and even do some free work for the company. If they contribute to the company in any way, they can claim partial ownership of it. The contributions of your spouse can turn separate property into commingled property. This gives them at least partial ownership over the asset.
To prove your right to commingled property, you must demonstrate that your spouse had no say over that property. They didn’t contribute to it, and they used it rarely or not at all. In some cases, your spouse may have tried to work against the property by attempting to sell or sabotage it.
Proving Entitlement to Marital Property
Ultimately, you cannot prove that marital property belongs to you alone. By its very nature, marital property always belongs to both parties. What you can do, however, is prove your entitlement to marital property. This means that you deserve to keep it and be its sole owner after the divorce.
Here are some ways to prove your entitlement to marital property.
You Are the Property’s Primary User
Imagine your spouse buys you a car and makes all the payments for it. Beyond that, however, they have no involvement with the property. You use it for work, errands, and so on; you fill the gas tank; you keep it clean. Ultimately, you have a strong argument that you deserve to keep this car, regardless of whether your name is on the lease or if you made any payments on it.
You Significantly Contributed to the Property
The topic of the marital home is a contentious one in many divorces. Often, both spouses want to keep it, especially when they feel wronged in the relationship.
If you believe you are entitled to the home, show the court how you helped maintain it. Stay-at-home parents, for instance, have a strong argument for entitlement. They can often demonstrate that the managed the home, keeping it clean and maintained. Perhaps they even oversaw or designed additions and renovations.
As mentioned above, separate property can become commingled. If you helped build your spouse’s business, or you managed the home the purchased before the marriage, you may qualify as a part owner of those assets. Talk to your attorney about how you helped build or maintain assets, and they may be able to make a strong argument for at least partial entitlement to it.
Keeping Martial Property May Come at a Cost
If you live in an equitable division state, you can generally claim the property to which you are entitled. The court gives you this property with little to no obligation from you. In a community property or equal division state like California, keeping any property usually comes at a cost.
Equal division attempts to give each spouse 50% of the overall marital assets. Let’s say you keep the home, and it is worth $250,000. Because of the equal split, you will “owe” your spouse $125,000 to keep the home. You can pay them the sum directly, or you can trade them property valued at $125,000.
Keep this in mind when you argue for your entitlement to martial property, especially in a community property division state. Consider how important the asset is to you, and whether you will be able to match half its value when the divorce is finalized.
Contact our office with questions or concerns about your property in a divorce. Our number is (949) 565-4158. You can also reach us online.