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Dividing Marital From Separate Property


When you enter into a marriage or legal partnership you agree to share and build a life together. If a couple decides to separate years or even decades later, it can be difficult to divide that shared life back into two separate ones.

Negley Law, APC offers the following considerations when sorting marital and separate property:

Common Law vs. Community Property State

Perhaps the most important factor in how property will be divided is simply what state you reside in at the time of divorce. Most states abide by “common law” in which property is divided primarily based on who’s name is on the deed, registration document, bank account, or title paper, or who purchased or received the property.

However, California is a community property state, meaning that all property acquired during the life of the marriage is assumed to be owned 50-50 by each spouse, regardless of who purchased it or whose name it is under. Of course, this can be argued against with evidence and involves a wide range of variables. In this blog, we will discuss how to navigate property division in a community property state.

The Date of Separation

The date of separation is key to parsing out whether something is communal or individual property. If something was received before the date of marriage or after the date of separation, it is not considered communal property. However, the date of separation is often much harder to determine than the date of marriage.

Evidence of separation might include anything that would demonstrate one spouse objectively acting as if the marriage is over, such as announcing a separation or filing for a divorce, physically moving out of the home, or opening a separate banking account. This must be backed up with proof and must clearly be communicated as the end of the relationship. For example, if one spouse physically moves out of the home but continues to be involved in a relationship with the other spouse, this cannot be considered an official date of separation.

Commingling of Assets

Common exceptions to the community property assumption include gifts, inheritances, personal injury awards, or earnings derived from a separate property. However, in order to ultimately be considered separate property, they must have been treated as such and not commingled with marital assets.

For example, if you received a monetary inheritance but placed it into your joint account with your spouse several years ago, it may be determined to be marital property because at this point, it would be indistinguishable from it.

This commingling issue is quite common, especially in regard to houses and other property. For instance, if you provided the entire down payment on the marital home with funds you had acquired prior to the marriage, the home is your separate property. However, any mortgage payments made on that home (whether from your income or your spouse’s) during the life of the marriage are considered to be from community property—thus the equity of the home is commingled.

It’s clear to see that parsing out these assets and splitting their net value can be an incredibly time consuming and overwhelming process, which is why having a Ventura Family Law Attorney by your side can make all the difference.

At Negley Law, APC we’re here to help as you navigate this challenging time. We can help take the burden of the legal proceedings off your shoulders so that you can focus on rebuilding your life and looking to your future. If you have questions or concerns about how to conduct yourself during a divorce, please contact us. The initial consultation with one of our dedicated family law attorneys is free. NOTE: The information contained herein is not intended to be legal advice and the reader should know that no Attorney-Client relationship or privilege is formed by the posting or reading of this article which is also not intended to solicit business.

John J. Negley, Jr., CFLS*


(805) 644-4222

200 E Santa Clara St #200, Ventura, CA 93001

*Certified Family Law Specialist by the California State Bar Board of Legal Specialization.

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