Can I Keep My Money if I Get Divorced?
Along with custody, property division is one of the major concerns of people going through a divorce. They are often interested in knowing what they can keep after their marriage ends. To answer this question, our Ventura and Santa Barbara divorce attorneys will need to review your specific circumstances, but below is some general information about property division in California divorce cases.
California Is a Community Property State
California uses community property laws when it comes to dividing the marital estate. This means that all property that is considered part of the marital estate is divided equally in half between both of the spouses. This is different from the equitable distribution rules used in different states that look at a number of factors in deciding how much of the estate each spouse receives.
In a California divorce, your share of the marital estate would typically be calculated as follows:
- All assets acquired during the marriage is added together with the growth in assets that happened to form the marital estate
- The couple’s debts are subtracted from the marital estate
- Each spouse receives a 50% share or as close as possible
If this seems like a mechanical rule, it’s because it is one. However, this only affects community property and not separate property.
Still, this does not fully answer how much of your money you get to keep in a divorce. These laws can become complicated when you brought certain assets into the marriage. Community property laws are very broad, meaning that they can sweep some assets that you owned beforehand into the marital estate. In other words, just because you think that something is separate does not mean that it has stayed that way over the course of the marriage.
For example, if you had a separate checking account and deposited your paychecks that you received during the marriage into that account, your money from beforehand could be subject to division. If your own personal money from before the marriage mixes with marital assets, they could all become part of the estate that is split down the middle.
Consider a Prenuptial Agreement
To keep your own money in a divorce, you need to be proactive before the marriage starts to have the best chance. If you are asking this question for the first time when you are facing a divorce, you may be disappointed with the answer that you receive. Without some significant planned effort, separate assets may become community property at some point during the marriage.
Those who are focused on maintaining their assets in a divorce should be looking at a prenuptial agreement (often called a “prenup”) before they are married. This will allow them to retain what they brought into the marriage and could set the financial ground rules for a divorce ahead of time. Otherwise, you are taking the risk that you have not kept your own money “separate enough” during the marriage. Prior planning working with an attorney is the best way to reduce your risk.
A word to the wise: do not wait until the last minute to get a prenup! Even if the agreement is solid, the fact that it is signed on the eve of marriage could be enough to render it unenforceable.
Seek Help from Our Ventura and Santa Barbara Divorce Lawyers
If you are facing a divorce or want to protect your property before you get married, the divorce attorneys at Bamieh & De Smeth, PLC in Santa Barbara and Ventura can help you. Contact us online or call us today at (805) 643-5555 to schedule your initial consultation.