Property and pecuniary rights acquired before marriage or acquired after marriage by gift, bequest, devise or descent is called separate property. Separate property also includes rents, issues and profits from separate property[i]. Normally, the character of property as either separate or community is determined at the date of its acquisition, unless the character of the property is changed. Spouses may by contractual agreement change their separate property into community property or their community property into separate property. However, to recognize any such agreement, courts have required some evidence in writing of the mutual intention of the parties to change the character of the property[ii]. Once a property’s separate character is established, it retains that character until it is shown to be community property by direct and positive evidence.
Generally, property owned by either spouse before marriage continues to be his or her separate property after marriage. If the parties have inextricably commingled the separate property with community property, premarital property may lose its separate distinction and separate property may be considered part of the marital estate. “Commingle” describes the circumstance in which property completely loses its identity and is not traceable[iii].
Where community funds are used to make payments on property purchased by one of the spouses before marriage, the community is given a pro tanto community property interest in such property in the ratio that the payments on the purchase price with community funds bear to the payments made with separate funds. This rule excludes payments for interest and taxes[iv].
[i] Brown v. Brown, 100 Wn.2d 729 (Wash. 1984)
[ii] Hurd v. Hurd, 69 Wn. App. 38 (Wash. Ct. App. 1993)
[iii] Oliekan v. Oliekan, 2006 UT App 405 (Utah Ct. App. 2006)
[iv] In re Marriage of Moore, 28 Cal. 3d 366 (Cal. 1980)