Tracing Commingled Funds to Determine the Community or Separate Character of Assets in Divorce

Why Is Tracing Important for Property Division in a Divorce?

When a couple gets a divorce in California, they must equally divide property between them. The division of property and assets in a divorce is governed by principles of community property in California. The only property that qualifies as community property is subject to division upon divorce. Property that is considered to be a spouse’s separate property will not be divided during divorce proceedings.

All property acquired during the marriage and before the parties’ date of separation constitutes community property unless evidence proves that a specific asset qualifies as a party’s sole and separate property. Separate property includes all assets a party acquires before getting married and after the date of separation. Moreover, any property a party acquires during marriage through gift or inheritance will be considered their separate property.

While timing is certainly a critical aspect of determining whether an asset or property is subject to division upon divorce, how the property was acquired can also determine how property is characterized upon divorce. This requires evidence that traces the acquisition of a particular asset to the funds used to obtain it and determining the character of those funds. This process is commonly known as “tracing” in California divorces.

For example, if a spouse uses the money they received as part of an inheritance to buy a vacation home while married, the house could qualify as the spouse’s separate property and therefore not subject to property division upon divorce.

There different methods of tracing property to characterize it as either community or separate property. Two of the major methods of accomplishing this includes “direct tracing” and the “family expense” method of tracing. These can be particularly useful when separate property and community property funds are kept in the same financial account, making it difficult to determine what funds were used to acquire a certain property.

The Direct Tracing Method

Direct tracing requires proof of a direct correlation between a transaction and the funds used to acquire a property. This method can be used to argue that property that would otherwise qualify as community property is, in fact, a party’s separate property because they used the separate property to acquire it.

The person making a separate property claim on community property must support their claim with evidence that clearly demonstrates their intention to use their separate property on the date the property in question was acquired.

For example, a car that was purchased while a spouse was married may generally qualify as community property. However, the spouse can claim that the car should be considered to be their sole and separate property by arguing that they used separate property money to buy the car.

There four elements to prove using the direct tracing method of property acquisition:

  • Sufficient commingled funds: At a minimum, this proposition requires proof that there sufficient separate property funds commingled in the financial account from which the party drew the money necessary to affect the car’s purchase.
  • Intent to use separate funds: Next, the direct tracing method requires proof that separate property funds were intentionally used to purchase the car in question. Evidence of intent is a crucial issue to address, and the credibility of the evidence used to prove intent becomes a significant concern.
  • Intent to acquire a separate, rather than community, interest: The person claiming a separate interest must also prove their intent to treat the purchased hypothetical car of our example as their separate property.
  • Disclosure of intent: Finally, the spouse who wants to claim the property as their sole and separate property must tell their spouse about their intent to do so.

The Family Expense Method

The direct tracing method requires comprehensive record-keeping on the part of the spouse claiming a separate interest in community property. Alternatively, one can use the “family expense” method of tracing to prove that separate property was used to acquire the asset in question. This method relies on the presumption the community funds are first used to cover family expenses.

For example, imagine that a couple had a bank account that contained both community property money and separate property funds. Charges concerning the payment of basic family expenses are presumed to be first drawn from the community property part of the account.

Thus, if an account had $50,000 in community funds and $50,000 in separate funds, community expenses – such as materials and labor to renovate the kitchen of the family residence are presumed to be paid from only the community property portion of the bank account. If community expense exceeded $50,000 before the purchase of the car in question, the remaining $50,000 in separate funds is considered to be the source of the funds used to buy the car.

Looking for Comprehensive Legal Representation?

Property division issues can be a challenge to understand, especially in divorce cases involving high-value assets. At Hanson, Gorian, Bradford & Hanich, you can count on our team of attorneys to help you determine the community or separate property character of certain assets, using the most effective tools in our legal arsenal—such as direct or family expense tracing methods.

For more information about how our firm can best represent your interests, call us at (951) 506-6654 or contact us online today and schedule a free consultation about your case.


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