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 must convince the judge at your divorce trial?

For clients researching how to get a divorce in California, this is a common concern – but one that has a clear answer.

Who Has to Prove the Issue of Separate Property in a Divorce in California?

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 for more details on the California divorce law addressing the topic.

Rebuttable Presumptions in California Divorce Court

The scenario above is called a “rebuttable presumption.” The presumption vanishes if the Court is presented with a preponderance of admissible evidence. In other words, you are on the spot to prove that the cabin belongs only to you.  However, a skilled family law attorney 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.  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.

How are Joint Bank Accounts Divided in a Divorce?

A special rule applies to joint bank accounts of married persons. They are considered community property, regardless of the terms of the agreement with the bank. See Probate Code §5305(a).

Let Our Sacramento Divorce Attorneys Help You Claim Your Rightful Property

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? Hughes Law Group can help you successfully navigate the complexities of getting a divorce in California. If you are considering or in a divorce situation in Sacramento, Placer, El Dorado, or Yolo County, call our family law attorneys now or set up an appointment with one directly on our site.