During the divorce , the characterization of separate and community property can receive significant attention .
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BY CHRISTOPHER D . HAYS , CPA
Yours , Mine and Ours
Separate Property vs . Community Property one or both parties to a marriage will often come into the marriage with separate property . Separate property is property that is owned exclusively by one spouse , rather than jointly by both spouses . Separate property may also be received by a party during the marriage through gift or inheritance , or from income generated from separate property . The parties typically give little or no attention to maintaining detailed records and documentation related to the separate property during the marriage — that is , until it is time to unwind the community estate .
During the divorce , the characterization of separate and community property can receive significant attention .
The mere commingling of separate and community funds in an account does not automatically alter the character of the separate property . Separate property monies keep their character as the funds move through accounts , entities , real estate investments , etc .— if the party can adequately “ trace ” such funds .
When separate property is commingled with community property , the spouse making the separate property contribution will often make a separate property claim related to the account or asset ( s ) purchased from the commingled account . The separate property claim assumes that the party making such a claim has not waived such right in writing .
Community property is defined in Family Code Sect . 760 as “ all property , real or personal , wherever situated , acquired by a married person during the marriage while domiciled in this state is community property ,” unless otherwise provided by another statute . During the marriage , income and expenses are
presumed to be community .
The burden of proof for supporting the separate property claim lies with the spouse making such a claim . If there are adequate records ( such as bank statements , check copies , invoices ), then a tracing can be performed . The tracing needs to document that the separate property funds were directly used to acquire the claimed separate property , not merely that such funds were available . The two methods typically used to support the separate property claim include :
• Direct tracing method : The tracing needs to support that sufficient separate property funds were available and actually expended to make the claimed separate property acquisition . The tracing typically consists of a detailed line-by-line analysis of account activity and can
During the divorce , the characterization of separate and community property can receive significant attention .
be more extensive and expensive when you have multiple bank or investment accounts that cover years or even decades .
• Family expense tracing method : Also referred to as the recapitulation method , the separate property holder must prove that community expenses exceeded community income . Therefore , the claimed separate property acquisition must have come from separate property funds . However , for the family expense method to be upheld in court , the separate property holder must show the income and expenses at the time of the acquisition , as well as the periods prior to the acquisition to prove there was no accumulation of community property .
Courts have determined either method is appropriate .
If separate property is used to acquire or improve community property , the separate property spouse can make a claim against the community for a simple dollar-for-dollar reimbursement ( no appreciation right ). Family Code Sect . 2640 ( b ) states , “ the party shall be reimbursed for the party ’ s contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source .”
While this may include items such as down payments , payments for improvements , and payments that reduce the principal balance of a loan used to finance the purchase or www . calcpa . org SEPTEMBER 2024 CALIFORNIA CPA 15