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Separate and marital property in divorce

The complex process of untying one's life from that of another can be made more difficult if the parties have not clearly maintained separation between their individual assets and those assets that they share as married persons. In California a person may maintain his own separate property after his or her divorce, though there are a host of reasons that one's apparently separate assets may be considered marital at the time that the marriage ends.

One of the main reasons that separate assets may be reclassified as marital during a divorce is because those assets were used during the marriage in support of marital purposes. For example, if during the marriage you use separate assets to pay bills that support both of the married parties, or if you keep the assets in an account that is accessible and used by both married parties, then the court may categorize these assets as marital property during the property division phase of a divorce.

You can avoid seeing your separate property changed into marital property by creating a premarital agreement that stipulates certain property as the sole possession of one of the parties. You can also exercise great care in the management of their separate property to prevent its commingling with marital assets and its conversion into marital property.

Understanding how marital and separate property will be divided during a divorce is important for everyone, not just the wealthy. Anyone who has separate property can lose exclusive ownership of that property in a divorce unless he or she takes careful steps to maintain it as separate from marital assets. For those considering a premarital agreement or a divorce, talking to a lawyer about the differences between marital and separate property can be very important.

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