In a divorce, it’s common for one or both spouses to have a particular interest in keeping certain assets once their marriage comes to an end. Whether the family home, a privately-held business, a highly-valued car or boat, or a beloved collection of art or jewelry, you are not alone if there are certain assets with which you aren’t willing to part as part of your divorce.
As we have previously discussed, since California is a “community property” state, the courts must generally attempt to divide divorcing spouses’ property equally. While this does not typically require splitting the proverbial baby – especially for high-net-worth couples – it does mean that your overall marital estate will need to be roughly split down the middle. So, if there are certain assets you want to protect, what can you do to make sure they stay with you after your divorce?
Options for Protecting Individual Assets During Your Divorce
Keeping California’s community property law in mind, the following are three potential ways to protect individual assets in a California divorce:
1. Prove that The Asset You Want to Keep is Separate Property.
The first, and perhaps easiest, way to protect certain assets in a divorce is to keep them out of your property division all together. You can do this if the assets qualify as “separate property.” Generally speaking, an asset can qualify as separate property if:
- It was acquired prior to the marriage,
- It was a gift to a single spouse during the marriage,
- It constitutes the proceeds of separate property, or
- It was acquired after a separation.
Of course, there are exceptions to these rules, and there are other specialized categories as well. But, these are the main classes of separate property in California. If an asset qualifies as separate property, it will not be subject to division in your divorce.
2. Negotiate a Settlement that Gives You What You Want.
If proving that the asset qualifies as separate property is out of the question, then your best bet may be to negotiate to protect the asset as part of your overall divorce settlement. As we mentioned above, community property estates do not need to be (and rarely are) split right down the middle. If you run your own business and want to make sure that your spouse does not acquire an ownership interest; if you want to remain in the family home; or, if you want to make sure you get to keep your car, boat, collection, or other prized piece of tangible or intangible property, you should discuss this with your lawyer so that you can develop and execute a negotiation strategy designed to protect it in your divorce.
3. Dust Off Your Prenuptial Agreement.
Finally, if you and your spouse entered into a prenuptial agreement, now could be the time to use it to your advantage. Prenuptial agreements can serve a number of different purposes, but one of the most common is undoubtedly to establish protections for assets that would otherwise be subject to division in a divorce. If your prenuptial agreement states that you are entitled to retain certain assets after your divorce, even if those assets would normally be subject to division, you and your spouse’s agreement will prevail over the generally-applicable rules. That is, of course, assuming that your prenuptial agreement is legally enforceable.
Speak with North County Divorce Attorney and Certified Family Law Specialist Richard M. Renkin
If you would like more information about how you can protect specific assets in your California divorce, we encourage you to contact us for a confidential consultation. To schedule an appointment with divorce attorney and Certified Family Law Specialist Richard M. Renkin, please call our North County law offices at (888) 837-3564 or request an appointment online today.