Establishing Separate Property

The Importance of Separate Property

In an ideal situation, from the perspective of a divorce, you have kept your pre-existing assets separate throughout the marriage, meaning:

  • You did not co-mingle funds in a joint account
  • You retained gifts, property or inheritance solely in your own name
  • You kept track of rental property as separate property and tracked income and expenses

Chances are, however, this is not how you handled your marital finances. However, there are still things we can do to establish separate property when you are contemplating divorce, including:

  • Separating your bank account as soon as you know you will be getting a divorce
  • Reconstructing financial records, obtain bank statements and other financial documentation to prove a separate claim for assets such as an inheritance
  • Constructing a record of the separate funds used for the purchase of property or assets or to pay for marital debts, for which you may be eligible for at the time of debt division

Separate property claims can also exist if you made contributions to retirement devices such as retirement plans, IRAs, or 401(k)s. Your separate property interests are those that you contributed before marriage and after separation. Your separate interest can be segregated from the community and awarded solely to you.

If you have stock-option plans to your employment you may have a separate interest in the options. Options granted before marriage that vest during marriage and options granted during marriage that vest after separation will have a separate component that must be determined.

The extent of a separate property interest is determined by various rules. The rules differ depending on the type of property. Knowing which rule applies is paramount.

San Jose Separate Property Lawyer

One of the most difficult aspects of property division is the task of establishing separate property interests. It becomes particularly complex when one spouse had a prior business interest, inheritance, owned a home before marriage or came from a wealthy background.

Assets acquired during the marriage are typically, but not always, community property under California divorce law. Identifying those "not always" situations requires the legal knowledge of an experienced attorney and the expertise of an outside financial expert.

If you believe you are due a larger share of the marital assets because you believe they were purchased with income or inheritance that was "separate" from the marital assets, contact me. I can assist in enforcing your rights.

Retain Experienced Divorce Counsel

I am divorce lawyer John S. Yohanan. For more than 30 years, I have been advising clients who are considering or in the process of divorce on how to protect their marital property rights and establish their separate property interests. My experience with complex marital estates and access to financial experts gives my clients a significant advantage in the assertion and protection of separate property claims.

To benefit from the advice of an experienced Santa Clara non-marital property division attorney in property division in divorce, contact family law attorney John S. Yohanan at (408) 297-0700 or via our online form.