Divorce Process – Proving Separate Property
Monday, November 10th, 2008PROVING SEPARATE PROPERTY
If a spouse wants to keep certain property after the divorce, it must be proven in court that it should be considered separate property. That determination (also referred to as the “inception of title” rule) is usually made according to when the item was purchased. The simplest way to prove this is to produce a title or receipt that shows the purchase date was prior to the marriage.
Also, if clear and convincing evidence is presented, assets purchased during the marriage using separate property funds can also be considered as separate property. The courts refer to this as “tracing.”
Don’t just take for granted that your spouse “knows” that such-and-such was your’s before the marriage. If you do not prove the separate property nature of the asset, it will be presumed to be community property and subject to division in the divorce. This is where a document trail is very valuable. Show, for example, where your house was purchased before the marriage using deed record. Or, provide a will and transfer documents to prove that a bank account holds only money received as inheritance when your mother died. If you got a piece of jewelry as a Christmas gift, show a picture of opening the gift Christmas morning.
