Debating on whether or not to present your future spouse with a prenuptial agreement can be a hot button issue. Nothing is more romantic than planning for the possibility of divorce before your wedding day. If you are the type of person that would like to have protections regarding your property, but do not want a full-fledged prenuptial agreement, there are many options available to you. Since in California we run a community property system, acting upon these options are necessary to ensure that your separate property stays separate.  Community property is all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state. (Cal Fam Code § 760).  Separate property is all property acquired before marriage or during marriage by gift, bequest, devise, or descent, including the rents, issues, and profits of the separate property. (Cal Fam Code § 770).  As a married person, however, you can generally maintain your own “separate property” by making sure it literally stays separate and doesn’t mingle with anything community.

Separate Property Inventories: the best way to ensure you have adequate accounting for your separate property assets is to keep an inventory of them. You would identify the property you are bringing into the marriage and identify the rents, issues, and profits from them. Think of this as a proactive tracking and accounting of what you have.  While this task is time consuming, it would be helpful to identify the fair market value of each item you are listing as well. In case there is any appreciation in value of your property, your spouse may have a claim to some reimbursement to that appreciation, discussed more later. This inventory does not need to be limited solely to property you acquired prior to marriage. You can update this list during the marriage by identifying any property you received as a gift, devise, bequest or descent. As noted above, property in these categories are also your separate property whether or not you are married at the time you receive it. Id.

Separate Funds: Keep your non-marital funds separate. The best way to generally ensure your marital funds are separate would be to keep any money you earned before marriage, or inherited at any time, in a bank account separate from your spouse’s. Obtaining a sole account in your name gives only you access to the funds in the account and the ability to obtain information from the account. (Carillo, supra at 38-39). Any earnings you receive during marriage should go into another account, either another sole account or a joint account with your spouse. Any earnings you receive during marriage are community property barring an agreement between you and your spouse.  This includes any expenditures of time, talent, and labor. (In re Marriage of Dekker, 17 Cal. App. 4th 842, 850, 21 Cal. Rptr. 2d 642, 647 (1993)). When your community property earnings are combined with you separate property earnings it results in “commingled” funds. (Carillo, supra at 79). Courts would need trace the funds back to both separate funds and community funds to determine their contribution to the purchase and thus their entitlement to reimbursement. Keeping funds separate saves a lot of time and confusion and is more likely to result in those funds being treated as your separate property later than if the funds have to be traced.

Real estate: Keep your real property separate from your spouse. One example: purchasing a home before you met or were married to your spouse. If you want that property to remain solely your separate property then you would refrain from adding your spouse’s name to the title of your home. Having joint title on the deed of your home raises a presumption that the property is community property. (Cal Fam Code § 2581). In addition, you would also need to maintain the home solely with non-marital funds. This could be done with money you earned before marriage or an inheritance because these are your separate property, as defined above.

Separate Business: Obtain a valuation of your separate business prior to marriage. The value of your business at divorce will likely be higher than before marriage and would be subject to the community property presumption. Any community contributions to this increase will be entitled to some reimbursement at divorce. (In re Marriage of Dekker, 17 Cal. App. 4th 842, 851, 21 Cal. Rptr. 2d 642, 647 (1993)). The problem is, if you did not obtain the value of your business before marriage, your spouse may receive more than he or she is actually entitled to receive or actually contributed to the business growth. For example: your business was valued at $100,000 on the date of your marriage and worth $500,000 on the date of your divorce. Your spouse would be entitled to $200,000 which is half of the appreciation (or difference between the two valuations). If you did not receive that initial valuation, the court could end up valuing it at less than its actual value at the time, and your spouse would receive more.

If you have an issue concerning your separate property rights, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri. We offer a free half-hour consultations.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

To many couples, their dog is more than a pet or piece of property, but is a member of the family. When couples make the decision to get a divorce, the issue of who gets the dog can be a deeply emotional one. Will the couple share custody, have sole custody with visitation, split the pets, or have one party get sole custody with no visitation rights? While the couple may consider the dog a member of the family, California courts look at the fury friend as personal property, much like a car or TV. This means who gets the dog is based on community personal property laws, and factors like who takes care of the dog, who remembers to feed him/her, or take him/her for walks will only be marginally considered. Instead, the Court is going to consider things like the date of purchase, whether a gift was intended, and what monetary value is associated with the dog. From a legal perspective, this is the same inquiry you would go through when determining who gets the furniture, but from the owner’s perspective, this is going to feel like actually splitting the “baby” in half. So how is the law going to “divide” Fido?

The first question is whether the dog is community or separate property. The court will look at when the dog was acquired. This means when the dog was purchased or, if you’re a true animal lover, when your pet was adopted. If the dog was purchased or adopted by one person prior to marriage, then the dog is that spouse’s separate property, and will remain with the original owner.

If the dog was adopted or purchased during the marriage, the next question is why was it? Was the dog purchased together, to be both parties’ pet, or was it purchased by one person as a gift to the other? If the dog was purchased/adopted during marriage, then the dog is community property, and the Court will need to award the dog to one party over the other. If however, the dog was a gift, the issue of transmutation arises. Transmutation is the change in character of property during the marriage. To be a valid transmutation, you generally need a writing with an express declaration of the property that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. There is an exception to the signed writing requirement; if the gift is an interspousal gift of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made, and the gift is not substantial in value taking into account the financial circumstances of the marriage (Cal. Fam. Code section 852).

If the dog was acquired during the marriage and is considered community property, the Court will need to determine which spouse to award the dog to. Although dogs are still primarily looked at as personal property, there is a growing tendency among judges to determine ownership of the dog based on the interests of the pet. California Family Code Section 6320 allows the judge to issue a protective order granting exclusive care, possession or control of a domestic animal to one spouse if there is a showing of good cause that there is a risk of the other spouse harming the animal. Judges are beginning to consider what is best for the pet, rather than just looking at them as property. The judge may consider if there are kids and which spouse will be awarded their custody, who has the financial ability to care for the animal, who the dog is attached to, and if one party will be dangerous to the animal.

While the court will determine where the dog will go in the event the parties cannot agree, it is important to know that you can determine who gets the dog outside of court, as you would any other personal property, in a settlement agreement. This means you can determine who gets custody of the dog, set a visitation schedule, decide who is responsible for transporting the dog, who will pay for vet visits, food, and other needs, etc. Further, the rules discussed above do not just apply to dogs, but will apply to any other furry or winged friends at issue.

If you are seeking information or counsel regarding divorce, division of assets, or, more specifically, who will get the pet in the event of divorce, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri – we offer free half-hour consultations.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.