Property is a big concern in any divorce. Uncertainty often breeds anxiety. Nowhere is this truer than in worries about losing your belongings.
In this article, we will broadly discuss the concept of personal property in a marriage, and we will provide tips on how to fight for your assets.
Defining “Personal Property”
Before going any further, let’s discuss the idea of what is or isn’t a “personal” asset. This definition can vary from one person to the next. Some believe that if they paid for something, it belongs to them. Others may have a collection of valuables, and they see any individual piece as part of the whole collection.
Legally, in a marriage, there are two forms of property:
- Marital property
- Separate property
Marital or “Community” Property
Generally, the law assumes that a married couple is family. Therefore, any property you purchase during the marriage is for that family’s benefit, and it is marital property.
Both spouses have equal ownership of community property. It doesn’t matter who paid for it or who used it. Technically, if you buy a pack of gum while you are married, your spouse co-owns that gum.
Separate Property
Only one spouse owns separate property. These are assets that come from outside the marriage.
Examples include:
- Inheritance
- Property you owned before the marriage
- Gifts from someone outside the marriage
Co-mingled Property
This is a vague classification, and it isn’t part of the standard legal definition. Essentially this is an asset that starts as separate property. Your spouse’s involvement in that property, however, may give them partial ownership of it.
For instance, imagine you inherit a plot of land. This land belongs only to you. However, you and your spouse decide to build a guest home on this property. Because you built the home during the marriage, and because your spouse helped, your spouse may be able to claim some ownership over the land.
Keeping Property That Is Important to You in a Divorce
Separate property belongs only to you, and you should be able to keep it without a problem.
Marital property is up for debate in a divorce. To keep any marital asset, you must claim that you are entitled to it.
Entitlement comes in several possible forms.
- Primary Use
This claim states that you used the item more than anyone in the home, and it is therefore “yours.” Imagine one spouse is a dedicated gamer, and the other plays simple games every so often. The hardcore gamer could claim that the video game system is “theirs” and try to keep it in the divorce. - Contribution to the Property
In this claim, you are arguing that you maintained the property and added to its value. Many stay-at-home parents employ this strategy when they attempt to keep the home. Essentially, they argue that they kept the home clean; they managed all repairs and additions; they made sure everything functioned properly for the family; etc.
Keeping your property could come with a price, depending on your state. Some states, such as California, use the “community property” model. Under this system, the court tries to give each spouse 50% of the overall marital assets. Therefore, even if you keep something, you owe your spouse half its value. You can directly pay them for it or give them physical property in trade. In some situations, you may be forced to sell the property and split the profits with your spouse.
Most states operate under the “equitable” division model. In this system, a spouse may be able to keep their property without paying for it.
Our firm can help you negotiate a fair property division in your divorce. If necessary, we can help you take the matter to court to argue for rightful entitlement. Call us at (951) 779-1610 or contact us online for a free consultation.