The character of a property dictates which assets and how the assets are divided in a divorce. Is the asset considered separate property or community property? Here are five frequently asked questions to help you better understand community property and, essentially, separate property.

1. What states are community property states?

Community property is the law in the following nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

2. What is community property?

Community property means all assets, purchased or acquired by a couple during their marriage, are jointly earned and are subject to division upon divorce. Gifts and inheritances are an exception this law. If you are specifically given a gift or you inherit a property, it is your separate property, regardless of whether you were married at the time.

3. How do you prove a property is not community property?

• Agreement

Couples can agree certain property will not be considered community property by signing a contractual agreement. Premarital and Postmarital agreements are examples of agreements couples enter into, in order to identify separate and community assets in the event of a divorce.

• Inception of Title

This rule dictates that a property’s character (whether it is separate property or community property) is based on the time and manner in which a person first acquires an interest in the property. Generally speaking, if a person first acquires an interest in the property before marriage, the property is considered to be separate property. On the flipside, if a person first acquires an interest in the property during the marriage, the property is considered to be community property.

4. Does the name on a property title matter?

Assets are presumed to be community property regardless of how the asset is titled.

5. Who has to prove the asset is not part of the community estate?

The party, who asserts the asset is separate property, has the responsibility to put forth enough evidence to prove their claim. Burden of proof dictates how much evidence is required to accomplish this goal. To prove a property is separate property, the party must put forth “clear and convincing” evidence. Clear and convincing evidence is a high standard requiring the proponent to prove that there is a high probability that the asset is separate property.

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