Let’s start by clarifying a few terms- Community Property and Separate Property.

What is Community Property?

Community property consists of the property, other than separate property, acquired by either spouse during marriage. Community property is the pool of money and assets and debts that are going to be divided between you and your spouse. Separate property is not in the pool of money to be divided but will be given to one spouse only and not counted in the division.

It might be helpful to understand the big picture and then delve into the details of the law. Community property is that which we (you, me or us) earned while we were married. Separate property is that which had nothing to do with our marriage.

As an example, if Fred worked for the Zoo for ten years before he married Betty, the money he put into his profit-sharing plan while employed at the Zoo is his separate property because Fred and Betty were not married yet and were not working together towards this financial goal.

On the other hand, let’s say Fred and Betty were already married when Fred got his job at the Zoo. Fred worked for the Zoo for ten years and then Betty and Fred decided to divorce. Fred’s profit-sharing plan at the Zoo is community property and will be in the pool of assets to be divided. It is community property even though it is only in Fred’s name and even though it is only from Fred’s hard work.

The theory is that regardless of whether Fred or Betty worked for the Zoo, they were in this together. And perhaps Betty was doing things to help and support Fred that allowed him to be successful at his Zoo job. Even if Betty was hateful and not supportive and it is a miracle that Fred kept his Zoo job all these years because Betty was making his life so miserable, the profit-sharing plan is still in the community property pool to be divided.

What is Separate Property?

A spouse’s separate property consists of:

• the property owned or claimed by the spouse before marriage;
• the property acquired by the spouse during marriage by gift, devise, or descent; and
• the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage.

As you see from our formal legal definitions above, one type of separate property (if you can prove it, which we will come back to) is something that you owned prior to marriage that STILL EXISTS or can be traced into something that STILL EXISTS. If you spent it or cannot trace it, in most cases, it is gone and is not to be discussed.

As an example, let’s say that Mary owned Disney stock prior to getting married and she still owns it. The Judge says that it is separate property because she owned it prior to marriage and she has documentation to prove it. The Judge has decided to divide the parties’ community assets 50/50. The community pool is worth $100,000. Joe is given $50,000 and Mary is given $50,000 plus her Disney stock.

Another common type of separate property is a gift or an inheritance. For ex- ample, Janie and Sam get married. Five years later, Janie’s dad dies and leaves her $20,000. Janie puts that $20,000 in an account by itself and does not spend it. If they get divorced and Janie can prove with documents that this money was her inheritance, the $20,000 will be awarded to her as separate property.

What if instead Janie and Sam used the $20,000 to take an amazing trip to Africa and all the money was spent on the African Safari. The money is gone. Janie will not be able to make a claim for $20,000 of separate property. The money was spent and the Court is not going to make Sam pay her back.

Proving Separate Property

All property at the date of divorce is assumed to be community property unless you can prove that it is separate property. The burden to prove this is on the person who is claiming it as separate property. It can be difficult to prove if a long period of time has passed and you have not kept all of your records.