Postseparation accountings The Law on Tracing Tracing Tracing Tracing? “Adequate” Substantial evidence rule is key When is a tracing adequate? In California, the court decides if a tracing is adequate and, if found, will be upheld on appeal if supported by substantial evidence (see (1988) 203 Cal.App.3d 322) Marriage of Higinbotham Burden” “The Who has the what is the of proof” “burden” – “standard California family law says assets acquired during the marriage are presumptively CP Party claiming SP usually has the to prove or trace his/her SP (the exception may be certain “burden” family expense tracings) Failure to meet the burden results in Failed SP claim on an asset Assets acquired during marriage = CP Case Law Property acquired during marriage is presumed CP (in California and other CP states) The Separatizer is the party claiming an asset acquired during marriage is just or (not “his” “hers” theirs) The Separatizer must gather the records and hire an expert to trace the asset(s) or present the tracing without an expert This burden can be too heavy if the cost to benefit to risk ratio does not work Case Law (cont’d) Commingling not fatal to SP per se Mere commingling of SP moneys into a CP bank/investment account is not to the SP if the account can be adequately traced Cases (1975) 14 Cal.3d 604 Marriage of Mix And (1958) 160 Cal.App.2d 680 Tassi v. Tassi Case Law (cont’d) Failure to trace is fatal to SP However, if the SP and CP moneys have been commingled Such that SP can no longer be clearly identified Then the CP presumption prevails
Postseparation accountings The Law on Tracing Tracing Tracing “Adequate” Tracing? Substantial evidence rule is key When is a tracing adequate? In California, the court decides if a tracing is adequate and, if found, will be upheld on appeal if supported by substantial evidence (see Marriage of Higinbotham (1988) 203 Cal.App.3d 322) “The Burden” Who has the “burden” – what is the “standard of proof” California family law says assets acquired during the marriage are presumptively CP Party claiming SP usually has the “burden” to prove or trace his/her SP (the exception may be certain family expense tracings) Failure to meet the burden results in Failed SP claim on an asset Assets acquired during marriage = CP Case Law Property acquired during marriage is presumed CP (in California and other CP states) The Separatizer is the party claiming an asset acquired during marriage is just “his” or “hers” (not theirs) The Separatizer must gather the records and hire an expert to trace the asset(s) or present the tracing without an expert This burden can be too heavy if the cost to benefit to risk ratio does not work Case Law (cont’d) Commingling not fatal to SP per se Mere commingling of SP moneys into a CP bank/investment account is not to the SP if the account can be adequately traced Cases Marriage of Mix (1975) 14 Cal.3d 604 And Tassi v. Tassi (1958) 160 Cal.App.2d 680 Case Law (cont’d) Failure to trace is fatal to SP However, if the SP and CP moneys have been commingled Such that SP can no longer be clearly identified Then the CP presumption prevails
2017%20AFLC%20Day%20Five%20Outline%20Property.docx