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What counts as community property?

During divorce, each spouse usually has a few possessions he or she feels strongly about keeping after the divorce. For some people this might be the marital house. For others, it may be a vehicle or a retirement asset. However, the way property gets divided in divorce can be complicated.

Before your divorce can be finalized, the community property that you and your spouse share must be divided. Usually, community property is divided equally because both spouses are considered equal owners of community property. However, separate property does not get divided. Instead, it usually stays with the spouse who owns it.

Most likely, all property that you had during your marriage will be considered community property unless you prove that it is separate property. To make sure you get your fair share, it can be valuable to know what items count as community property and what items count as separate property.

How do community property and separate property differ?

Community property generally includes assets a that either spouse acquired during the marriage, unless a prenuptial or postnuptial agreement says otherwise. Property that is acquired with community property is also generally classified as community property.

Separate property typically includes assets acquired before the marriage and any property acquired with separate property. An inheritance or gift given to only one spouse also counts as separate property.

What is comingled property?

Sometimes separate property and community property become mixed. This property is then referred to as comingled property. Comingled property can be especially difficult to divide in divorce.

However, there are a few general rules to consider:

  • When separate property loses its identity because it has been comingled, the property will be considered community property.
  • Property acquired with mostly community property will probably be considered community property.
  • Property acquired with mostly separate property will probably be considered separate property.

It can be helpful during your divorce to know what items you may want to focus your efforts on when property is divided. However, by understanding what your fair share of the assets may look like, you may be better equipped to advocate for your best possible outcome.

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