What is Commingling and How Does It Impact My Prenup?

Separate Property vs. Community Property
‍Before diving into the concept of commingling, it's essential to understand the difference between "separate property" and "community property." Unless a prenuptial agreement states otherwise, assets or debts acquired by one party before marriage are considered "separate property," while those acquired during the marriage may be considered "community property”, depending upon the asset. In California, separate property remains with the original owner, whereas community property is typically divided between the divorcing parties. 

What is Commingling?
‍Commingling refers to the mixing or "mingling" of separate property with marital or joint property. This blending of assets can complicate the process of dividing property during a divorce. Imagine your assets are represented by blue paint and your partner's by red. Once mixed, it becomes challenging to separate the colors, especially when a third color—representing shared marital assets—enters the picture. 

Examples of Commingling
‍Common instances of commingling include situations involving real estate or retirement accounts. For example, a piece of real estate might start as separate property, but if both partners contribute to the mortgage, the property becomes commingled. Similarly, if contributions are made to 401(k) accounts both before and after marriage, the lines between separate and marital property blur. 

Another example involves a spouse who enters the marriage with a significant sum in a separate bank account but later deposits marital income into that same account. This action would be considered commingling. The initial deposit (separate property) becomes mixed with the marital income (marital property), making it difficult to determine which portion of the account should be classified as separate and which as joint property. 

Commingling and Prenups
In the context of prenuptial agreements, commingling can significantly affect the enforcement and interpretation of the prenup. A prenup typically outlines the division of assets and debts acquired before and during the marriage. However, if separate property is commingled with marital property during the marriage, it can complicate the determination of what is considered separate versus marital property in the event of a divorce. 

The impact of commingling on a prenup can vary depending on the specific language and provisions within the agreement, as well as the laws in the jurisdiction where the prenup is enforced. Some prenups may contain explicit provisions addressing commingling, such as clauses that specify how mixed assets should be treated or that allocate certain assets as separate regardless of commingling. However, if the prenup does not adequately address commingling, or if the commingling is extensive, it could invalidate certain provisions of the agreement or lead to disputes over the classification of assets. Courts may be more likely to treat commingled assets as marital property subject to division, particularly if there is insufficient documentation or evidence to trace the separate origin of those assets. 

‍Accounting for Commingling in Your Prenup
To mitigate the impact of commingling on a prenup, couples should carefully consider and discuss how they will manage their finances during the marriage. This might involve maintaining separate accounts for separate property, keeping thorough records of financial transactions, and periodically reviewing and updating the prenup to reflect any changes in financial circumstances or agreements regarding asset management. Additionally, it's crucial that both you and your partner are as detailed as possible when listing individual assets and debts during the prenup drafting process. This can help ensure that potential issues like commingling are adequately addressed, protecting both parties throughout the marriage.

Sources:
https://ondafamilylaw.com/property-division-texas/separate-property/comingling-property/
https://www.hamiltonandchan.com/blog/2021/04/could-you-invalidate-your-prenuptial-agreement-by-commingling-your-assets/