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How do you make something separate property during marriage?

San Francisco, CA |
Filed under: Divorce

My wife and I just got married and we have no plans for divorce, however, we have a few assets that were earned after the marriage that we want to be separate property. How do we do this? Do we need to file a property declaration for just those assets in question?

Attorney Answers 5


  1. Look into a 'post-nuptial' agreement. Run it by a local attorney to make sure it was done properly.

    Thomas A. Schaeffer, Esq. Law Office of Juarez and Schaeffer PO Box 16216, San Diego, CA 92105 (619) 804-4327 www.jslaw.org This posting is provided for "informational purposes" only and should not be relied upon as "legal advice." Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principals discussed here may differ substantially in individual situations or in different States.


  2. Look into a 'post-nuptial' agreement. Run it by a local attorney to make sure it was done properly.

    Thomas A. Schaeffer, Esq. Law Office of Juarez and Schaeffer PO Box 16216, San Diego, CA 92105 (619) 804-4327 www.jslaw.org This posting is provided for "informational purposes" only and should not be relied upon as "legal advice." Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principals discussed here may differ substantially in individual situations or in different States.


  3. What will serve your purpose is not a "declaration" but an agreement in the form of a contract. Be aware that there are important dangers in attempting to prepare such an agreement and the only prudent strategy is for both parties to have the benefit of independent representation. Additionally, both of you will need to determine whether recordation in the public record will be needed so, for instance, the agreement is binding on third parties such as creditors.

    Best wishes for a favorable outcome, and please remember to designate a best answer.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.


  4. A property declaration (whatever you mean by that) would not work unless it complied with the requirements of the law. You could do what you want via individual transmutations of the properties in question, coupled with a Transmutation Agreement containing the required Express Declarations. See Family Code Section 850-852. You could also do it with a Postnuptial Agreement. You would best retain an experienced Family Law Attorney to advise you and to draft the appropriate documents.

    Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.


  5. I agree with Mr. Conviser. You should consider a written transmutation agreement.

    A post nuptual agreement could also work, but if you only want to address certain limited assets, the transmutation agreement would be simplier.

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