Quit Comingling Assets, its Sole & Separate Property

Protect Your Assets with Prenuptials and Sole & Separate Property

The average age of the person divorcing in the US right now is age 50. Surprisingly, estate attorney Elizabeth Westby says, “I cannot tell you how many dissolutions I have right now where the parties have been married 30 to 40 years.”

There are many community property states. If you live in a community property state, you need to reconsider how assets are held.  "Community property" is a term that refers to how the property during a marriage is viewed in the eyes of the courts. In community property states, all property accumulated by a husband and wife during their marriage becomes joint property. In plain terms, this means that all property belongs to both husband and wife equally if it was acquired during the marriage. This is even true if it was originally acquired in the name of only one partner. Conversely, all property acquired before marriage, or through a gift or inheritance during marriage, is presumed to be the sole and separate property of the spouse who has acquired the property.  As with anything in law, there are exceptions, but this is the general rule.

The character of property as community or sole & separate can be important.  For example, if spouses divorce, each will retain his or her sole and separate property just as if they had never been married.  Any community property will be divided equitably. Equitably does not always mean equally. However, an "equitable" division of assets means a fair division. So you need to protect yourself with the right titling if your in-laws become out-laws.

To help preserve the distinction between sole & separate and community property, spouses will often enter into Ante-nuptial (after the marriage) or Pre-nuptial (before the marriage) contracts so that they have the option of opting out of the community property laws their state adheres to. That way, in the event of a divorce, each spouse will keep the property he or she either brought to the marriage, or acquired under his or her sole & separate designation during the marriage, as provided by the nuptial agreement.

An agreement of this type is helpful and enables the individual to hold property separately from their spouse.  But care must still be taken during the course of a marriage to preserve the distinction between community property and sole & separate property. Elizabeth Westby, J.D. contributed to this press release.