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Q. How is property commingled? |
Dear Donna,
My husband after 17 years of marriage has filed for divorce and is claiming that he can trace all funds used to purchase vehicles and the residence from separate property acquired before the marriage. The vehicles were depreciated against a business I ran solely, but we filed our taxes jointly. Could you please explain the laws concerning separate property? How is property commingled? If my husband is entitled to our cars and house I’ll be desolate, like women who divorced 40 years ago! ~Robbed in Reseda
Dear Robbed,
Don’t panic! Claims are only claims, and often they turn out to be “wishful thinking” on the part of the claimer. If properly traced, California law does recognize separate property contributions to property acquired during marriage, but there are limitations. This does not mean that the Community gets NO interest in the property. This is a highly technical area and there is a lot at stake for you. You should get independent legal advice.
Take the residence, for example. Many factors are important including: How is title to the property held? What was the source of funds used for mortgage payments and improvements? If Husband contributed a down payment of $50,000 to purchase the residence during marriage, and title was taken in joint names, then the property would be community property. Husband would be entitled to a reimbursement without interest of the original contribution of $50,000, but the rest of the equity and appreciation would be community property. In summary:
- Don’t panic! Keep an open mind, but treat your husband’s assertions as claims only, not facts, until verified. To determine the veracity of his claims, say to your husband: “I’m happy to look at that. Please put together a set of the documents that explain your investment so that I can take it to someone to help me understand how this works.”)
- Hire your own legal counsel and also perhaps a divorce financial advisor, to help you request and assess supporting documentation of all separate property claims.
- Get all facts before negotiating. In California a full financial disclosure is required by law, so get yours before you start to make a deal. A person claiming separate property assets or reimbursement has the burden of proof to produce the documentation that supports any claim.
- Remember that in divorce, there are many negotiable elements. Should some of the property ultimately be characterized as Husband’s separate property, then it may well be that Husband will end up paying more in the areas of spousal support and contribution to legal fees. Your marriage is one of long duration and thus spousal support is an important consideration.
- Make it your goal to get all of the necessary facts and documents as quickly and cheaply as possible. Then negotiate a settlement.
- Try to avoid a contested divorce, because the costs of fighting can quickly consume more resources than are at stake! Mediation and collaborative law are two modes of settlement-oriented divorce process.
Best wishes,
Donna
This article is not legal advice. You should consult an attorney if you have legal questions that relate to your specific divorce.
