What exactly is Separate Property?
Idaho is a community property state. What that means is, essentially, that any and all property that you and your spouse acquire during the marriage is considered community property, i.e. both of you own the property 50/50. There is a lot of misconceptions around the idea of separate vs. community property out there. A lot of people think the following are community property:
- The income you get from your own job. You earned it so it should separate, right?
- A house that you bought during the marriage and only your name is on the deed. There may even be a quit claim deed that your spouse signed during the loan process.
Although the above may seem like they should be separate, the answer is not always so clear. In the example of the income that you earn at your job, so long as you are married, that income is community income which would be split 50/50 at the end of the day during the divorce process.
Now, the house is a more complicated issue that will be addressed in a separate article. However, for purposes of this article, the answer is, it depends. It could be separate and it could be community. It will boil down to the circumstances of the purchase.
There are exceptions to the rule that anything obtained or acquired during the marriage is going to be considered community property. Separate property is broadly defined as any property that you owned prior to the marriage or any property that you acquired by gift, bequest, devise or descent. Now, if you do have separate property, you have to take steps during the marriage to keep that property separate from your community assets. That means, if you get an inheritance from a rich uncle, you cannot place all of that cash into the community bank account and treat the money as community money. If you want to keep it separate, you need to establish a new bank account or trust for the money and clearly treat it as separate property. Otherwise you are running the risk of the property being deemed community during the divorce and the court will order the property (whatever it is) split 50/50 unless there are some other compelling circumstances that would justify a deviation from the standard treatment of community property.
Proof of Separate Property
The other thing to keep in mind while going through the divorce and trying to see if there is separate property that shouldn’t be divided is that whoever is claiming that the property is separate has the burden to prove that. Mere allegations and statements that the property is separate and not community will not cut it. There has to be some tangible, solid evidence that shows that either you had the property prior to marriage or you got it through a gift or inheritance and the property was kept separate during the entirety of the marriage.
Contact Our Idaho Division of Assets Lawyer Today
The characterization of property during the divorce process is not as clear cut as it sounds, and if you make the wrong choice, it could cost you a lot. We have litigated this issue many times and have recovered tens of thousands of dollars for our clients by fighting for the proper characterization of property that was acquired during the marriage or has been turned into community property. If you have an issue related to your property during the divorce process, contact us today for a consultation.