I owned a home before marriage free and clear with a net rental income of $8K/ year which I put in my bank. After marriage I borrowed $20K against it and put it in my account. I sold the home and bought another using funds in my bank (rents + $20K loan) in my name as separate property. Wife signed a quitclaim.
15 years later, she says property is community. She says she signed quitclaim not knowing what it was. All docs incl. bank statements have disappeared and the bank goes back only 7 years.
I got the $20K TD, grant deed and quitclaim from county. Tax return show rental income & 1031 exch. but not sources of additional funds to buy the property.
Wife says, my money was spent for family expenses and money used to buy the property was community’s money.
Is it separate or community?Found this on the web: §4.08 Tracing Through Family Expenses The second method of establishing that property purchased with commingled funds is separate property involves tracing through family expenses. This tracing method is based on the presumption that family expenses are paid from community funds. If at the time property is acquired it can be shown that all community income in a commingled account was exhausted to pay family expenses, then all funds remaining in the account were necessarily separate funds. [Marriage of Mix (1975) 14 C3d 604, 612.] This method can be used only when, through no fault of the spouse claiming separate property, it is not possible to ascertain the balance of income and expenditures when the property was acquired. [See v See (1966) 64 C2d 778, 783.] The spouse claiming separate property must keep adequate records to overcome the presumption that property acquired during marriage is community property. [See v See, supra, 64 C2d at 784.]
How was she put on title? If she signed a quit claim, it indicates that she had an interest in the property. The money spent to buy the property may have been separate property, (and that would be yours), but if the property was acquired during the marriage, she may have 1/2 interest of any value after deduction of your separate party investment.
Retain a family law attorney to review the details and give you more informed advice. The other issue is that 15 years is a long time. Was there a final judgment signed by the court? Why would she wait 15 years before bringing this up?
You need to sit down with an experienced family law attorney, both to get the answer to your question and, more importantly, to make sure t6hat you can prove what you need to prove if you go to trial, which will then allow you to put on a persuasive argument in settlement. There's enough at stake here that this should NOT be a do-it-yourself project.
In California there is a legal presumption that property acquired during marriage is community property. If you want to prove otherwise you have the burden of proof to establish that all or some part of it is community property. The way to meet the burden of proof is through "tracing". Whether you can convince the court through your tracing effort is really a question of fact, although there is case law that discusses the validity of various tracing methods. You have obviously looked into this as is evident from the way you have posed your question. As Alexander Pope succinctly wrote several hundred years ago, "Drink deep or drink not from the Pyrian Spring. A little knowledge is a dangerous thing." You should consult with a lawyer knowledgeable in these matters.
Sign up to receive a 10-part series of useful information and legal advice about the divorce process.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline