Can Separate Property Become Community Property? 9

Commingling: Mixing “Mine” With “Ours”

Separate property includes assets, both real and personal, that were either owned by one spouse prior to the marriage or were acquired through an inheritance, as a gift or purchased with funds that are separate property.

Separate property can however, become community property (property equally owned by both spouses) through a process called “commingling.” This happens when separate property is mixed or “commingled” with community property. If, for example, a spouse deposits his inheritance into a joint bank account where both spouses make withdrawals and deposits, the inheritance could at some point be considered “commingled” and part of the marital assets.

In order for a court to distinguish separate property from community property, you would have to be able to show a clear paper trail that tracks the property back to the point it was considered separate, such as deposit slips or other documents that identify the property. Even then, if the property is liquid, it is impossible to differentiate between funds which were initially separate property and marital funds – especially after multiple deposits, withdrawals and market gains or losses are considered.

You could also retain your rights to your separate property through a pre- or post-nuptial agreement . If for example, you used your inheritance to make a down payment on the family home, you and your spouse could agree in a written agreement that the down payment money was your separate property and in the event of a divorce, you would be reimbursed for the down payment.

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Discussion

  • marylyn

    If a spouse uses his business account and deposits also inheritance into that account is it consider comingled at that point? We live in California.

  • Amanda

    I live in Indiana. My mom died from Mesothelioma and my family was awarded a large sum on money. I attempted very hard to keep the money separated from my spouse and put rental houses in my name only, our home and land in my name only, deposited the checks into my account only etc. Now, 10 years later, my husband and I are getting a divorce. Is he entitled to half? Or is that money considered “separate?”

  • Kimberly Frimml-Shor

    I currently reside in Iowa and my question is this, my husband and myself have been married for 7 years and are currently going through a not so pleasant divorce in which he drank heavily throughout. I am curious to find out because Iowa is a Community Property state, and the debt that incurred during our marriage, student loans and credit card debt are all in my name but, I can prove that they were established during our 7 year marriage. He states that he is not reponsible for this debt. Is this correct?

  • ahruss

    My mother owned her own vehicle, had several CD’s and some inherited property. She later married and her money was used for monthly living expenses, her vehicle was traded in for another vehicle. Her spouse just passed away and they own no real estate together. His heir’s are starting a succession, we live in Louisiana, if mom paid for the new vehicle from her own checking account will this have to be taken into consideration in the succession or does it just become “community property” and she now has to pay his kids for the vehicle she has already paid off? Also, shouldn’t his kids list all of his tools, camper trailer etc that they have come and taken from mom’s home? Thank you

  • scott

    If my spouse after we were married sold her home.then we bought a new one and she put 80,000 down on it.with in 12 years making joint payments the house vaule rose to 750,000 then went down to where if we sold today the equity is 80,000 would she be intitaled to it all or would her spouse be intitled to a portion of it?

    • scott

      Scott lives in california

  • Donna Ford

    If my father bought land in Louisiana where he lives with his retirement and social security money is this separate or community property if deeded in both names ?

  • Kent

    My spouse and I purchased a time share before we were married and I paid for 90% of the asset. We did purchase it in both of our names, pre-the marriage. The time share went down in value and there is no equity. Am I entitled to 90% of the proceeds if we sell considering it was 90% mine before the marriage? I do have documentation that shows the amount of money I paid.

  • t

    husband purchased townhouse 1 year before we got married. that was 32 years ago. we have made payments from our account over the years and file it on our income tax. it the amount we paid since we have been married now community property. My name is on the load not the deed. calif. We paid the rest of the load off with equity from our home