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Family courts around the country recognize that spouses own some property that is separate from what they accumulated as a marital couple. Those assets that comprise the marital estate are subject to division at the time of divorce while separate property is generally excluded from a divorce award.
Premarital Property
The property that a person brought into the marriage is usually off-limits to the other spouse. However, this can change if the old property has comingled with marital property. For example, a bank account can become comingled property if the other spouse was added to the account or funds were used from the account that make transactions indistinguishable between separate transactions and marital transactions.
In late June, the Supreme Court of the United States (SCOTUS) ruled that the Defense of Marriage Act (DOMA) was unconstitutional, and that the benefits available to legally married heterosexual couples should be available to legally married gay couples. The 1996 federal law had defined the institution of marriage as a union between a man and a woman, thus denying federal benefits for gay couples whose marriages were recognized at the state level—like joint tax returns, Social Security, health insurance, pension protection, benefits for military couples, and immigration protections for couples from different countries.
The court invalidated DOMA in a 5-4 ruling. Justice Anthony Kennedy, who delivered the decisive vote along with the court’s four liberal justices, wrote the majority opinion stating that DOMA “violates basic due process and equal protection principles applicable to the Federal Government.”
Same-sex marriage has become a much publicized issue in recent years. Pending the United States Supreme Court decision regarding the status of same-sex marriage in California same-sex couples in California may register as domestic partners with all of the same rights, at the state level, as spouses.
A California domestic partnership is “a legal relationship available to same-sex couples, and to certain opposite-sex couples in which at least one party is at least 18 years of age.” It affords the couple "the same rights, protections, and benefits, and... the same responsibilities, obligations, and duties under law..." as married spouses (legalinfo.ca.gov).
Family courts around the country recognize that spouses own some property that is separate from what they accumulated as a marital couple. Those assets that comprise the marital estate are subject to division at the time of divorce while separate property is generally excluded from a divorce award.