How to Protect Separate Property in the Event of a Divorce

When you are in a state of bliss during a pending or current marriage, the last matter you may be contemplating is what might happen to your separate property in the event of a divorce.

The best way to avoid any confusion regarding separate property is to be aware of the conditions surrounding the separate property and to act prior to a potential divorce.

Defining Separate Property

Separate property can include cars, homes, boats or RVs, jewelry, stocks, bonds, gifts, inheritance, or other. This property has been acquired by one spouse with his or her own funds or through a gift or inheritance either before the marriage or after the date of separation and not commingled with marital funds.

Separate property can also include gifts by a third party during a marriage or money received by one spouse for pain and suffering from a personal injury lawsuit.

Once the property has been commingled, the property is no longer considered separate, and California courts may decide to distribute the property equally between the spouses.

How Can I Protect My Separate Property in the Event of a Divorce?

Consider establishing a pre-nuptial or post-nuptial agreement.  A lawyer who specializes in pre-nuptial or post-nuptial agreements can help you draft an agreement that protects you and your assets or advise you about one that you might be asked to sign.  For tips on whether you need a pre-nuptial agreement, read our blog, Deciding Whether a Prenuptial Agreement is Right for You and Your Partner.

Keep separate accounts.  In the event one spouse has received money or inheritance, that property would still be considered separate property as long as the funds are deposited in a separate account.