By Sherry A. Thompson, Esq., CFLS
If you have separate property during a marriage, it is very important to protect that property.
Separate Property is any real or personal property acquired before marriage, or during marriage by a gift, inheritance or bequest; or the rents, proceeds, or profits from separate property. As such, here are some rules to protect your separate property assets:
1) Do Not Change Title! Do not add your spouse’s name to any deed, title or bank accounts. If you want your spouse to inherit your separate property you can accomplish that goal in many other ways without changing title.
2) Do Not Commingle separate property assets with any community property assets. Do not use separate funds on community assets or put it in the same (community) accounts.
3) Keep All Your Records on your separate property assets. These records include documents showing the original source of the separate property and the records showing where the funds or assets went if transferred or sold. These records are needed to provide“tracing” of separate property if you have commingled the property or have changed the type of asset, i.e. sold a separate property car and used the same funds to purchase a boat.
4) If You Decide to Use Separate Property towards the purchase of a community item, or to pay on, or improve a community asset (i.e. remodel a community house) get a written agreement with your spouse that your separate property will remain your separate property!! Remember, there is generally no such thing as an enforceable oral agreement regarding property in family law!
If your spouse won’t sign such an agreement, then you can choose not to use your separate property towards that purchase or improvement. If you decide to contribute separate assets you may still be entitled to reimbursement under Family Code Section 2040, depending on the transaction type.
5) If You Are Not Sure About How to Handle a possible separate property transaction, see a competent family law attorney. It is better to spend a couple of hundred dollars now rather than lose thousands of dollars later in a divorce.
6) If You Haven’t Married Yet, and you have separate property or assets, consider a pre-marital agreement that lets you and your future spouse decide about your property rather than allowing a Judge to possibly decide later.
Sherry A. Thompson is a California Certified Family Law Specialist. Ms Thompson can be contacted at Thompson Law Office, 15497 W. Sand St, STE 100, Victorville,CA (760) 245-3220 or visit us at thompsonfamilylawspecialist.com