The Separate Estate


I cannot tell you the number of times I have heard someone say ” the house is in my name only” with the individual assuming this means he or she owns the house as spearate property. The rule of separate property is simply this: Separate property is any property that is not community property.It is really that simple, if it is not community – and there is a presumption that it is – then it is separate. The title or name on the deed, whose name is on the loan documents, etc. are not decisive. However, these documents may be some evidence and are therefore relevant to show the property is separate so do not hesitate to bring this to your lawyer´s attention.The longer you are married the more likely your property has been comingled – that is to say, mixed up with community property. If this has occurred, it is your job to “trace” the nature of the property to show it is separate. Tracing can be accomplished in several ways, most commonly it is by showing the court that you owned property that was separate, the separate property was sold during the marriage and the proceeds used to buy new property. By tracing the money in this fashion you can show that you own part or all of an asset as separate property.

Another common issue is called reimbursement. Reimbursement is a claim you may assert when your separate estate was used to benefit the community or the separate estate of the other party. It is also viable when community assets were used to benefit one party´s separate property. For example, if you own a parcel of real property before marriage – that land is you separate property. Assume you marry and then build a home on the property with community funds (all income acquired during the marriage is community). You own the property and the house is attached. Your spouse can claim reimbursement (ask for 1/2 of the cost of the house built on the property). Simlar and functionally the same is economic contribution – it can be used in the same fashion the only difference is the manner in which the value is calculated.

Bottom line, if you want to preserve your separate property, keep really good records, or get a prenuptial agreement.