J.D. Harvard Law School ‘73
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association.
Licensed to practice in California, Maryland, Washington D.C., & Georgia
There are many things to consider if you’re planning for divorce. One of the most important considerations is records. If you have what you think is separate property, be prepared to defend it, because you have the burden of proof. Proving that “no” community property has gone into your separate property is the problem. If community property has paid any expenses of your separate property, the community is entitled to reimbursement, so you lose half of the amount in question.
If community property has paid part of the purchase price, made a mortgage payment that partially reduced the principal, or paid for part or all of an improvement that likewise increased the value, the community acquires a proportionate interest in the property. This has a snowball effect if we are talking about a series of properties of increasing value.
Avoiding a community reimbursement claim or a community interest claim requires accurate and complete financial records going back to when the property was acquired. If the separate property we’re talking about was purchased with the proceeds of previously owned separate property, “when it was acquired” means when the first separate property in the chain was acquired. That could easily mean going back twenty years.
If you are counting on obtaining the needed records from a financial institution or an escrow company, you are in for an unpleasant surprise while planning for divorce. They usually don’t keep records more than six years, even on microfilm or electronically. Also bear in mind that if you can’t account for a portion of the purchase price, that portion will be presumed to be separate property.
Moreover, the records must allow you to trace all payments to their source. You may be able to prove that the down payment came out of your separate checking account, but you also have to prove that the money was separate property when it went into your checking account. If your Aunt Matilda sends you a $10,000 check every year, be sure the check is payable only to you as your separate property, and that you keep a copy of it.
If you’ve been prudent, you will have kept all your checking account records, investment account records, and escrow records. You will also have kept meticulous records of the income and expenses of your separate investment property. If they show the property always carried itself, great. If they don’t, you’d better be able to show that any shortfall was made up with your separate funds.
Lastly, assuming you kept all the records you need to protect your separate property, make sure they don’t disappear. Added to the usual risks of fire, flood, and moving is the risk that your spouse may destroy them or hide them at the first sign of serious marital discord. Have at least one complete set of copies, and keep it in a safe place under lock and key.
San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.