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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.

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Attorney answers 3


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.

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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.


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.

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