How do community and separate property differ?

On Behalf of | Jul 28, 2020 | divorce

If you and your spouse are divorcing, you may be concerned about how your property will be divided in that process. This is understandable because you have worked hard for the property that you have, and it can be difficult to plan for your post-divorce life without having any idea what property you will be able to keep and what property may need to be replaced.

Property includes real estate, like the marital home. However, it also includes anything else of value, as well as any debts. If you are preparing for divorce, it can be helpful to create a list of all the property that will need to be divided, so you can try to speculate what you might be entitled to, what you want to keep and what you can let go.

What property might you be entitled to?

One of the first considerations you may have about a piece of property is whether it is community property or separate property. This is an important distinction because community property must be divided in divorce, while separate property stays with the person who owns it. This means that there is a chance that some items may not get divided in divorce at all.

By trying to determine what property is community property or separate property, you can begin to get an idea of what you may be entitled to in your divorce. To do this, it can be helpful to understand the basic differences between the two classifications.

How is property classified?

Community property generally includes anything that was acquired during your marriage by you, your spouse or you both together. Property acquired mostly or completely with community property also counts as community property, as does property gifted to spouses jointly and any revenues generated from community property.

Separate property generally includes any property one spouse acquired before marriage. Other examples of community property include property acquired by a spouse with separate property, property one spouse receives as an inheritance or gift, or damages received because of a personal injury.

Spouses each control half of each piece of community property, so usually community property is divided equally in divorce. Separate property generally stays with the person who owns it.

Understanding the basics differences between community and separate property can help you better prepare for your divorce and your post-divorce life. However, property division can be very complicated. To avoid any significant miscalculations, it may be worth sharing your property division concerns with your divorce team. The members of your divorce team may be able to help you get a better understanding of the impacts property division could have in your specific situation.

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