In Washington State (and not all states are the same), separate property is recognized and taken into account in divorce proceedings. Separate property is exactly what it sounds like: the separate assets owned by each spouse before marriage.
Separate property also includes gifts and inheritances even if they are received during the marriage.
Here’s an important point about getting separated from your spouse that most people don’t know when they enter a divorce: in Washington, any assets, or money earned
after the date of separation is also considered separate. So, it’s always a good idea to open a new bank account when you separate. That way the money you earn after separation does not get co-mingled with community money. If it does, it can be difficult and expensive to trace.
Separate property is treated differently than community property (the property held jointly in your marital estate). So if you’re thinking about getting a divorce, one of your first jobs will be to identify which assets were owned before your marriage as well as any gifts or inheritances either of you may have received during the marriage.
Most of the time, separate assets will not usually be divided in the divorce. However, in long term marriages, those that have lasted over twenty years or so, the courts often will take into consideration the existence of separate property when dividing assets in a fair and equitable manner.
Sometimes people mix their separate and community assets while they’re married. This is called co-mingling. Keeping track of what you had when you got married may help you to untangle your commingled assets in the event of a divorce. Often, once the assets are co-mingled, it is too late to make a separate property claim because the assets can’t be traced. When this issue arises, it is best to hire a lawyer and ask them to help you contact a forensic accountant to trace this money. In order to do this, you need good proof of the existence of the money, whether it was pre-marital or an inheritance or a gift.
Now you can see why it would have been a good idea to take the necessary steps to protect the assets you brought into the marriage. But here you are now, and you either did or didn’t protect yourself.
If you have a pre-nuptial agreement, you may want to consult a lawyer to see if it is enforceable. Often pre-nups are not properly drafted and can be set aside. Also, it’s a good idea to have your pre-nup reviewed by a lawyer if you feel it was not fair in the first place, or is no longer fair given the circumstances that arose during your marriage.
If you are in a situation where one party had separate property and did not keep it separate, you may also want to consult a lawyer to see if it can be traced. Keep in mind, even if you paid the mortgage on your spouse’s separate property, it may still keep its character as separate property.
The issue of separate property can be confusing, but since the stakes can be high, so you may want to consult a lawyer to discuss this issue.
Partner Amanda DuBois has a deep understanding of separate property issues and agreements. Feel free to call the DuBois Cary Law Group if you would like to schedule a consultation. (206) 547-1486.
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