Thomas R. Andrews, Income from Separate Property: Towards a Theoretical Foundation, 56 Law & Contemp. Probs. 171 (1993), https://digitalcommons.law.uw.edu/faculty-articles/578
Law & Contemporary Problems
This article addresses an important area of historical disagreement among the community property states: the characterization of the rents, issues, and profits ("income") from separate property brought into or acquired during marriage. Of the nine community property states, five characterize the income derived from separate property as separate property. The other four states characterize such income as community property. Although there have been scattered discussions of this issue throughout the community property case law and literature over the years, I have searched the literature in vain for a comprehensive treatment of the question. Certainly there has not been one in recent years.
The issue is important because of the prevalence of separate property in marriages. Two societal phenomena are combining to cause increasingly more separate property to be brought into marriages. First, more persons are
cohabiting for a significant part of their productive lives before they marry.' They are, therefore, more likely to have property to bring to the marriage. Second, divorce6 and remarriage7 are becoming more and more common. Parties to a former marriage are more likely to bring significant separate assets to a second marriage than are those who marry for the first time. Separate property generally will generate income during the marriage. It is important to the married couple to know what the character of the income is, regardless of whether it is accumulated or spent.
Moreover, recent developments have convinced me that this question is of importance, not only to the nine community property states, but also to many of the common law property states. One of those developments, of course, is the promulgation of the Uniform Marital Property Act ("UMPA"), which has taken the position that the income from separate property should be treated as "marital property" (the Act's name for community property). While Wisconsin has adopted that rule as part of the UMPA, it is not at all clear that other states considering adoption of the UMPA would do so easily. Indeed, the presence of that rule in the UMPA may make the Act less palatable to historically common law states. Were the Commissioners on Uniform State Laws ("Commissioners") right in recommending that rule?