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When tracing to claim refund of separate property is difficult or impossible, how much can a personal testimony help in the SOC?

San Jose, CA |

We are going through a divorce in CA. Since records older than 7 years are discarded by financial institutions and i did not keep the statements either, tracing is becoming difficult if not impossible. How much will the court rely on the personal testimony of the party claiming the refund? The existence of substantial separate property is quite obvious. The only problem is with tracing. Are there any other alternatives to claim separate property in such cases?

Attorney Answers 5

  1. Do a cost benefit analysis and see if you can get a forensic accountant to be appointed and the Court to order the costs be split. I work in San Jose area and have extensive experience with this. If you would like to make an appointment with my office, please visit my Avvo profile and I would be happy to schedule one. You may also consider if not hiring the accountant, getting one as a consultant to assist you in the tracing. I do it all the time.

    Attorney Williams practices FAMILY LAW throughout the State of California and may be reached at (831) 233-3558 and offers free consultations. The response provided in this forum is not intended to create an attorney-client relationship. The information offered in this response is for general informational purposes only and should not be relied upon without further consultation with a legal professional after all relevant facts are disclosed and considered. DANIEL S. WILLIAMS, ESQ. LAW OFFICES OF DANIEL S. WILLIAMS 500 LIGHTHOUSE AVENUE, STE. A MONTEREY, CA 93940 (831) 233-3558 -- OFFICE (831) 233-3560 -- FAX

  2. Tracing is difficult and expensive. Claim and acknowledge by stipu;ation.

  3. Accord with both prior responses. You could propound discovery, including Requests for Admission of Truth of Facts and Special Interrogatgories, the responses to which could be admitted into evidence at trial. You would best retain an experienced Family Law Attorney if you are not now represented.

    Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.

  4. In a trial, the court would likely require documentary evidence, and an expert witness (forensic accountant, in this case) would be the best way to introduce the evidence into the record.

    In the absence of documentary evidence, you have an uphill battle ahead of you. The judge could look to your credibility, but this only goes so far, in my experience. Documents really do rule.

    I like Mr. Conviser's idea regarding a Request for Admissions. This is a formal form of the discovery process.

    At an SOC the format is much more free-wheeling, and is more akin to mediation. You might be able to convince the Settlement Officer of your claims. But if you can't convince your spouse, then it goes nowhere, since the Settlement Officer has no judicial authority beyond affirming any agreements that you might make.

    Consider hiring counsel to assist 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.

  5. While I agree with previous counsel Mr. Williams’ suggestion of hiring a forensic expert, if you have the financial resources, this would be the best way to go. Otherwise, if you say it’s very obvious about the existence of separate property, you need to bring in as many witnesses as possible to trial to testify that they have personal knowledge of where, how, and when you received the separate property and how you maintained the identity of the separate property during and throughout the marriage.

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.

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