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In a divorce, how effective is a respondent's testimonial about his separate property claim, when tracing is almost impossible?

San Jose, CA |

Records haven't been kept - financial institutions save them for only 7 years, so no hope there either. Divorce came-in as a shock. Petitioner is in no mood to settle because the advantages to her if case is set to trial are huge. If the respondent testifies as to the net income during marriage (mostly earned by him, through regular employment) and an approximate value for the expenses during the same period, will the court agree that the net worth - (testified income during marriage - expenses) = separate property? Petitioner has no separate property claims - walked into the marriage with nothing.

Attorney Answers 3

Posted

Tracing is one of those issues were the burden of proof on the party asserting the claim is extremely high. You must document the accounts in question from month to month. People usually hire forensic accountants just to analyze the records and assert a claim.

I'm sorry that I don't have a better answer for you.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

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Posted

Was all, or any the income from a separate property source (like passive income from an asset owned before the marriage)? In California, if the income received during the marriage is from wages/earnings of either party during the marriage, those earnings are COMMUNITY property, unless the parties had an enforceable pre-marital agreement, and property or assets acquired with community property (including money in savings accounts, etc.) are community property as well.

Since you seem quite confused, or mis-informed about this, you should consult an EXPERIENCED family law attorney.

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Posted

Wow nice formula, not so sure if its accurate though. Separate property claims are a bit more complex, not just numbers, any admissible evidence can be used to identify separate property. The easy part is that if its community property, then it's not separate property. If funds were commingled in same account, the judge will most likely label it community property. If petitioner came in with nothing, and there is no pre or post nuptial agreement or transmutation document, then petitioner is likely to walk out with half of all the "net worth" that was acquired during marriage. That's our laws in the great State of California.

This advice does not create an attorney client relationship and should only be used for informational purposes. You are advised to speak with an attorney in person. This advice is not to relied upon to make legal decisions and is only intended as an advertisement for the law office.

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