# Separate property?



## Lostinthelight (6 mo ago)

A gift of a large amount was given to stbxh which he used for down payment of our home, I was told it’s considered separate property even if he deposited the money in our joint account. What are your experiences?


----------



## Openminded (Feb 21, 2013)

Maybe depends on your state? In mine, it was treated as joint once it went into a shared account.


----------



## bobert (Nov 22, 2018)

Lostinthelight said:


> A gift of a large amount was given to stbxh which he used for down payment of our home, I was told it’s considered separate property even if he deposited the money in our joint account. What are your experiences?


You need to consult a lawyer because each state may have different rules.

However, generally, once the money is used on a marital asset or put into a joint account, it is no longer "his". Similarly, if an inherited property becomes a martial property and you contribute your money to the upkeep, it's no longer "his".

My wife was gifted $128k for a down payment. As soon as that money was used on a marital asset, it was no longer hers. Years later we used some of her inheritance to pay off the rest of the mortgage. Again, it's a marital asset so that money is no longer hers.

Now, I'm not a total **** so when we made a post-nup years later I put in that if/when the house is sold, she gets that money back, then the rest is split 50/50. Talk to a lawyer, doing that may actually be in your best interest.

We bought a property off my parents with some of her inheritance, that would likely be split 50-50 as well. However she said I can have that one.

She has a property that she inherited, it is 100% hers and I cannot touch it because she has been very careful to keep it hers.

We have separate bank accounts, partly to keep her money separate from mine/ours. If it went into a joint account, it's now shared.


----------



## 342693 (Mar 2, 2020)

Money in a shared account is usually always joint property. Curious as to why he wouldn’t put it into a separate account.


----------



## Openminded (Feb 21, 2013)

Absent any paperwork to the contrary (notarized document that you agreed he would get the down payment back) I would think he’s out of luck. But it depends on your state.


----------



## Lostinthelight (6 mo ago)

The state is California and it was deposited in his account then transferred to the joint as that’s what was used to purchase the house.


----------



## Openminded (Feb 21, 2013)

I am not familiar with CA law but I would think he would have a better shot at claiming that if it had gone straight from his account as a separate payment and not as a joint payment regarding the house. But I don’t know how that works with a marital asset like a house. I made the mistake of not keeping my inheritance separate and all of it had disappeared by the time of the divorce. The lawyer’s response was “sorry.”


----------



## Lostinthelight (6 mo ago)

Openminded said:


> I am not familiar with CA law but I would think he would have a better shot at claiming that if it had gone straight from his account as a separate payment and not as a joint payment regarding the house. But I don’t know how that works with a marital asset like a house. I made the mistake of not keeping my inheritance separate and all of it had disappeared by the time of the divorce. The lawyer’s response was “sorry.”


I’m so sorry that that happened to you. I have a feeling that you’ve done well for yourself. It must have been very painful.


----------



## bobert (Nov 22, 2018)

Lostinthelight said:


> The state is California and it was deposited in his account then transferred to the joint as that’s what was used to purchase the house.


It will be considered community property. He could try to fight it though.


----------



## Openminded (Feb 21, 2013)

Lostinthelight said:


> I’m so sorry that that happened to you. I have a feeling that you’ve done well for yourself. It must have been very painful.


I felt very stupid that I had lost everything that my parents worked so hard to leave me. I’m no longer that trusting person. And I don’t want to be. Lots of baggage now.


----------



## Lostinthelight (6 mo ago)

Openminded said:


> I felt very stupid that I had lost everything that my parents worked so hard to leave me. I’m no longer that trusting person. And I don’t want to be. Lots of baggage now.


That is too bad. How horrible that your ex would do that.


----------



## SongoftheSouth (Apr 22, 2014)

Openminded said:


> Maybe depends on your state? In mine, it was treated as joint once it went into a shared account.


Yes that is probably correct. Once you intermingle it can be considered joint. He should have kept it into an account in his name only. However, if this was used as a downpayent and he can back track this to inheretence/gift he may be able to ask for it back upon sale of home during divorce


----------



## Lostinthelight (6 mo ago)

Thank you for your responses and input.


----------



## TooOld (Nov 22, 2020)

I am sorry that you are going through this. I am a California lawyer, but do not practice family law, so first, you must get counsel from a California lawyer with family experience, preferably with the state bar Family Law Specialty designation who will look at the specific facts of your situation and provide correct advice. Getting legal advice on the internet, even from well intentioned lawyers, is fraught with danger. With those caveats firmly in place, from what I learned and I believe is still the law in California is that separate property comingled with marital property creates a presumption that the comingled separate property is now a community asset, BUT, the owner of the separate property can rebut the presumption through tracing and other analysis of the funds flow. This is why in divorce proceedings where there are significant assets being divided the first person hired after counsel is a qualified forensic account. So the *presumption* is that all property acquired during marriage is community property. Your husband would need to prove that when the property was bought, community property expenses used all community funds in the account first and then the separate property was used. *Your husband has the burden of proof to rebut the presumption with evidence*, not just what he thought, etc. and if he cannot meet that burden then the asset will be characterized as community property and will be divided equally between the parties. The other variable here and again, you need local competent counsel, is how far a particular judge will go in letting a spouse prove the separate property. The judge decides the "quality" of the evidence, i.e., is it probative, etc. so you might get different outcomes with different judges. Local counsel will have some idea of how a particular Family Law judge looks at this issue. So, at this point you have a legal presumption in your favor.

Just as a PSA, to all who have assets before marriage or inherit assets during marriage, think very carefully before you comingle separate and community assets.


----------



## Lostinthelight (6 mo ago)

TooOld said:


> I am sorry that you are going through this. I am a California lawyer, but do not practice family law, so first, you must get counsel from a California lawyer with family experience, preferably with the state bar Family Law Specialty designation who will look at the specific facts of your situation and provide correct advice. Getting legal advice on the internet, even from well intentioned lawyers, is fraught with danger. With those caveats firmly in place, from what I learned and I believe is still the law in California is that separate property comingled with marital property creates a presumption that the comingled separate property is now a community asset, BUT, the owner of the separate property can rebut the presumption through tracing and other analysis of the funds flow. This is why in divorce proceedings where there are significant assets being divided the first person hired after counsel is a qualified forensic account. So the *presumption* is that all property acquired during marriage is community property. Your husband would need to prove that when the property was bought, community property expenses used all community funds in the account first and then the separate property was used. *Your husband has the burden of proof to rebut the presumption with evidence*, not just what he thought, etc. and if he cannot meet that burden then the asset will be characterized as community property and will be divided equally between the parties. The other variable here and again, you need local competent counsel, is how far a particular judge will go in letting a spouse prove the separate property. The judge decides the "quality" of the evidence, i.e., is it probative, etc. so you might get different outcomes with different judges. Local counsel will have some idea of how a particular Family Law judge looks at this issue. So, at this point you have a legal presumption in your favor.
> 
> Just as a PSA, to all who have assets before marriage or inherit assets during marriage, think very carefully before you comingle separate and community assets.


Thank you so much for your insight! You’re absolutely right in that I’ll need to go back to my attorney.


----------



## Lostinthelight (6 mo ago)

TooOld said:


> I am sorry that you are going through this. I am a California lawyer, but do not practice family law, so first, you must get counsel from a California lawyer with family experience, preferably with the state bar Family Law Specialty designation who will look at the specific facts of your situation and provide correct advice. Getting legal advice on the internet, even from well intentioned lawyers, is fraught with danger. With those caveats firmly in place, from what I learned and I believe is still the law in California is that separate property comingled with marital property creates a presumption that the comingled separate property is now a community asset, BUT, the owner of the separate property can rebut the presumption through tracing and other analysis of the funds flow. This is why in divorce proceedings where there are significant assets being divided the first person hired after counsel is a qualified forensic account. So the *presumption* is that all property acquired during marriage is community property. Your husband would need to prove that when the property was bought, community property expenses used all community funds in the account first and then the separate property was used. *Your husband has the burden of proof to rebut the presumption with evidence*, not just what he thought, etc. and if he cannot meet that burden then the asset will be characterized as community property and will be divided equally between the parties. The other variable here and again, you need local competent counsel, is how far a particular judge will go in letting a spouse prove the separate property. The judge decides the "quality" of the evidence, i.e., is it probative, etc. so you might get different outcomes with different judges. Local counsel will have some idea of how a particular Family Law judge looks at this issue. So, at this point you have a legal presumption in your favor.
> 
> Just as a PSA, to all who have assets before marriage or inherit assets during marriage, think very carefully before you comingle separate and community assets.


Hello TooOld, I consulted with my attorney, and she confirmed that the loan from his parents, since he has the documentation showing their transfer of the money into his account and then wired to me, is still considered "separate property". Like I've said before, I want to do the right thing by his parents, but I'm also angry in that I was duped into giving him a green card, then buying our home and finding out it was all planned to get the money from his parents then divorce me and sell our home and get the money to buy another home, with his current GF.


----------



## TooOld (Nov 22, 2020)

Lostinthelight said:


> Hello TooOld, I consulted with my attorney, and she confirmed that the loan from his parents, since he has the documentation showing their transfer of the money into his account and then wired to me, is still considered "separate property". Like I've said before, I want to do the right thing by his parents, but I'm also angry in that I was duped into giving him a green card, then buying our home and finding out it was all planned to get the money from his parents then divorce me and sell our home and get the money to buy another home, with his current GF.


Dear Lostintheligt,
I know how frustrating your situation is. I have a dear friend (since 7th grade) that is going through a contentious divorce and she is facing the same problem you are. She believed her soon to be ex-husband's separate property had been comingled in several investments over their 42 year marriage and he suddenly produced records in discovery she had never seen before that traced the money, hence the share of those investments she thought she would receive is zero. He too had spent money on women and vanity projects. It is not fair. Unfortunately one of the things I learned in law school is that the law is not about fairness. In the immortal words of my Property Law Professor, "if you want fairness go to a G.dD..n seminary, this is a G.dD..n law school". From the outset I told her that no-one I know has ever come through a divorce feeling that the law and process recognized and compensated them for the grave damage that was done to them. I told her that to calibrate her expectations of the process. I keep reminding my friend, that she did nothing wrong and her ex to be is a narcissist and a sociopath. If we were chatting I would give you the same advice. I chose my user name to reflect the reality that I have seen much in this life, which has given me the perspective of the "long game" of life. You are a far better person than your soon to be ex husband and I am confident you will overcome this.


----------



## Lostinthelight (6 mo ago)

TooOld said:


> Dear Lostintheligt,
> I know how frustrating your situation is. I have a dear friend (since 7th grade) that is going through a contentious divorce and she is facing the same problem you are. She believed her soon to be ex-husband's separate property had been comingled in several investments over their 42 year marriage and he suddenly produced records in discovery she had never seen before that traced the money, hence the share of those investments she thought she would receive is zero. He too had spent money on women and vanity projects. It is not fair. Unfortunately one of the things I learned in law school is that the law is not about fairness. In the immortal words of my Property Law Professor, "if you want fairness go to a G.dD..n seminary, this is a G.dD..n law school". From the outset I told her that no-one I know has ever come through a divorce feeling that the law and process recognized and compensated them for the grave damage that was done to them. I told her that to calibrate her expectations of the process. I keep reminding my friend, that she did nothing wrong and her ex to be is a narcissist and a sociopath. If we were chatting I would give you the same advice. I chose my user name to reflect the reality that I have seen much in this life, which has given me the perspective of the "long game" of life. You are a far better person than your soon to be ex husband and I am confident you will overcome this.


Thank you, you sound wise, and I mean that with the utmost respect. Your words bring me comfort, even though you are right, that my child's father will show more and more narcissistic behaviors. Nothing will ever be enough for him, as he is set on ruining me. To me, money comes and goes, but he will never reduce me to anywhere near his hateful being.


----------

