Your Spouse claims that your Separate Property is community Property (and wants half). Who has to prove it?

Your spouse says that the little cabin you acquired during the marriage belongs to both of you, but you insist that it was a gift to you alone or you purchased it with your separate property. Which one of you has to convince the judge at trial?

The spouse asserting that an item is his or her separate property bears the burden of proving it is separate property. Otherwise, all property acquired by a married person during marriage is legally presumed to be community property. See Family Code §760. This is called a “rebuttable presumption” because the presumption vanishes if the Court is presented with a preponderance of admissible evidence. In other words, you’re on the spot to prove that the cabin belongs only to you, but we can help you trace the appropriate documentation and get the evidence admitted so that the judge properly considers your separate property claim.

California Evidence Code §662 also provides a rebuttable presumption that an ownership interest in property is held as stated in the title instrument. However, that Evidence Code presumption can be rebutted only if there is clear and convincing proof, such as evidence of an agreement or understanding between the parties that they really held different interests. See Evidence Code §662 and Family Code §2581. An “express declaration” changing the character of property (community to separate or separate to community) may also prevail over the more general Evidence Code §662 presumption. See Marriage of Barneson (1999) 69 Cal.App.4th 583, 593.

Joint bank accounts of married persons have a special rule. They are presumed to be community property regardless of the terms of the agreement with the bank or if the bank knows that they are married. See Probate Code §5305(a).

Note: There are special rules for property acquired before 1975. Since that was at least 45 years ago, these don’t come up that much anymore but the Bar examiners frequently tried to sneak this issue on the Bar Exam (at least when we took the Bar in the 1990’s). For instance, property acquired by a married woman in her name alone used to be presumed to be her separate property. See Family Code §803. These are the fact patterns that keep family law attorneys up at night trying to remember.

Are you in the position of having to prove that your property is truly yours? Does your spouse insist on getting half of an asset that you know is your separate property? We would love to help. If you are considering or in a divorce situation in Sacramento, Placer, El Dorado, or Yolo County, please give us a call or set up an appointment directly on our site.

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