November 15, 2012 By Paul Wallin

Separate property in a marriage is any property that was owned prior to marriage; acquired during marriage by gift, bequest, devise or descent; and the rents, issues and profits of any such property. [CA Family Code § 770(a) et. al.]  Thus, the simple answer to  the question is, if you owned it prior to marriage, upon divorce it remains your separate property.  This premise is easiest understood when it comes to bank accounts, pensions, or specific items of furniture and furnishings.  The value of these items can be clearly defined at the date of marriage and the date of separation.

For instance, if you had $25,000.00 in a savings account prior to marriage and never took out any money or put in any other money, then the full $25,000.00 plus interest accrued remains your separate property.  If you spent $10,000.00 of this money on your honeymoon, but otherwise left the account alone, then the remaining $15,000.00 plus interest is your separate property.  The spent money is gone, your spending it during marriage was your choice and you are not entitled to reimbursement.  On the other hand, if you spent the same $10,000.00 on a piece of art, and you can trace  that your separate property money was used to purchase the piece of art, then the spent money is not gone, it is in the painting and you get the painting. If the pricey piece of art work you purchased loses value and is now only worth $5,000.00, you still only get that one piece of art at its current value as your separate property.

Now, lets look at the matter of your classic car you brought into the marriage. If it was indeed “owned” by you prior to marriage (i.e. paid in full) then it is indeed your car.  However, if you were making payments on the car during the marriage, from money you earned during the marriage, then the community has made a contribution to your separate property and is entitled to reimbursement.  Or, if you owned the car prior to marriage but during marriage the car underwent significant repair  work or restoring work, the community would still be entitled to some form of reimbursement, the question becomes how much?  If the car was worth $5,000.00 in its unrestored state (the value at the time of marriage) and the community put $20,000.00 into the car to restore it and now in its fully restored state the car is worth $60,000.00, how much is the community entitled to?  This is where the community has to make a choice; either the community is entitled to the dollar for dollar contribution or a proportional value of the equity.  Proportional refers to the amount contributed by you and the community. Naturally, the community will choose whichever value is the highest.
In our example, the total investment in the car was $25,000.00, so in this case, $5,000.00 or 20% is separate property and $20,000.00 or 80% is community property. Thus, your separate property interest would be $5,000.00 plus 20% of the $55,000.00 equity or $11,000.00 and the community would own 80% of the $55,000.00 equity or $44,000.00.  Remember, you own half of the community so your total interest in the car would be $38,000.00 and your wife’s interest would be $22,000.00.

Clearly this can be a very complex area of law that requires the guidance of an experienced attorney. If you or a loved one needs help with a spousal support matter or any type of family law matter, call Wallin & Klarich today.  Wallin & Klarich has a team of highly skilled, aggressive family law attorneys ready to take your call 7 days a week, 24 hours a day!  Wallin & Klarich has been in the business of helping people for over thirty years. Our San Bernardino, Victorville divorce lawyers, Riverside, Los Angeles, Ventura, San Diego, and Orange County will be there when you call.

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