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California Separate Property Divorce Code 2640

Tracing Husband’s Separate Property To Home Improvements


Husband argues that he provided sufficient evidence tracing his separate property from his profit sharing plan to payments for the home loan earnest money and school fees, and therefore the trial court erred in rejecting his claim for reimbursement for these separate property contributions.

A. Burden of Proof

On appeal, the appellant, husband, bears the burden of establishing error. 196 Cal.App.3d 8, 16.) “All issues of credibility are for the trier of fact, and all conflicts in the evidence must be resolved in support of the judgment. The trial court’s judgment is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. ” 27 Cal.App.4th 661, 670.)

B. Reimbursement Under Section 2640

Husband and wife stipulated to the division of separate and community property interests in the residence and underlying land. The issue here is thus whether husband is entitled to reimbursement for his separate property contributions to building the family residence.

We reject wife’s contention that it was unclear as to whether husband’s separate property was used for his separate property portion of the real property or the community property portion. This argument lacks merit because it was undisputed that the earnest money and school fees were paid in connection with the construction of the family home, which was a community property asset.

C. WTG Payment

D. $32,950 Construction Loan Earnest Money Payment

Property Defined In Divorce

When a couple pursues a legal separation or a divorce, the court will decide how the property should be divided between them. Even if you and your soon-to-be ex-spouse have already informally divided property or agree on how you will divide it, the court must make a formal ruling on the property.

This does not necessarily mean you will have to enter a courtroom for a proceeding but that a family court judge must sign off on the final decree, which a Los Angeles divorce attorney could help you draft.

In a divorce, property is considered anything that is bought or sold or has value. For instance:

  • Houses or other pieces of real estate
  • Life insurance with cash value
  • Stocks and bonds

Contact Our Office For More Information

To learn more about property division at divorce, please review our property division guide. To learn more about reimbursements at divorce, click here.

Often, success in a particular depends on the arguments and analysis presented. While some facts and arguments appear relatively straightforward, it may come down to how information is presented and litigated. Please call our office today at 955-9155 for a free consultation regarding this issue as well as all other divorce issues.

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What Is The Difference Between Community Property And Separate Property In California

Separate property is a type of property that one spouse obtained prior to or outside of the marriage, such as a gift from a friend, while community property generally encompasses all property acquired by either spouse during the course of a marriage. Typically, when a court is tasked with dividing assets in California, separate property is exempt, meaning both spouses can keep their separate properties, while community property will be distributed between both spouses. That said, certain properties that you may believe to be separate property, such as a business that you solely run without your spouse, may indeed be considered community property, thereby entitling your spouse to a portion of your business. With so much at stake, it is critical that you retain the services of a competent Los Angeles property division attorney who can help you fight for what is rightfully yours.

Facts And Procedural Background

Divorce or Legal Separation

Prior to husband and wife’s marriage on July 5, 1981, husband bought 5.4 acres of land in Hesperia.

In 1985, husband purchased for $70,000 a wind turbine generator as a tax shelter.

On April 27, 1987, husband liquidated his Money Purchase Plan/Profit Sharing Plan totaling $77,395.14. The profit sharing plan funds were acquired before and during the marriage. After liquidating the profit sharing plan account, husband opened an account at Chino Bank and deposited the money in the account. This was the only money deposited in the account until after husband wrote three checks. The first check, issued on June 30, 1987, for $34,192.15, was to pay off the remaining amount owed on a $45,000 promissory note for the purchase of the WTG. The second check for $32,950, issued on August 6, 1987, was for payment of earnest money for a $250,000 home construction loan, and was deposited with the Chino Bank’s construction loan department in a noninterest bearing account. The third check for $9,258, issued on September 17, 1987, was for a $9,258 school fee, in which payment was required in order to obtain a building permit for construction of husband and wife’s family home. Husband and wife’s family home was built on the 5.4 parcel of land husband purchased before his marriage.

The correct amount of the school fees paid by husband was $9,258, not $9,280.

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Watch Our Free Reimbursement Claims Video

There are many kinds of reimbursement issues that can come up when a couple gets divorced. One party may have used separate property to purchase or improve a community asset. During the marriage, community funds may have been used to improve another partys separate property. After the parties separated, one party may have used their earnings to pay community debts. These are a few examples of the different kinds of reimbursements claims that can arise when a couple gets divorced. For important free information to consider about reimbursement claims, read on.

There are numerous types of reimbursement claims that a party can make during a divorce. We have set forth below a list of the most common reimbursement claims.

Other Types Of Reimbursement Claims

There are many other types of reimbursement claims that can be made. In the Division of student loans section of our website, we discussed reimbursement claims when community funds were used to pay for all or part of one partys education or training. If community funds were used to pay one partys separate debts, there can be a right of reimbursement. A discussion of all of the different types of reimbursement claims available in a divorce is beyond the scope of this website.

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S To Determine Family Code 2640 Reimbursements Irvine Divorce Lawyers

Family Code 2640 reimbursements apply when one party uses separate property assets to acquire a community property home. The separate property is reimbursed as a dollar-for-dollar payment to the contributing spouse. This page describes the requirements that must exist prior to any Family Code 2640 reimbursement being permitted by the Orange County Family Court in California using the case example and analysis of the Bonvino case.

The Bonvino case provides a different holding than one might expect. In this case, the separate property down payment was not simply reimbursed dollar-for-dollar, but the party contributing the separate property down payment was entitled to a pro-rata share of the propertys appreciation.

A Reimbursement Would Be Due From Neighborhood Property To The Contributor Partners Separate Property To Reimburse The

Date of Separation in California Divorces, Diana Romanovska, Divorce Attorney in San Francisco, CA

A household code part 2640 declare is a request for reimbursement based mostly upon one partners separate property contribution to the acquistion of neighborhood property. All property owned by the particular person earlier than the wedding, Nevertheless, separate property is property not subjected to the california neighborhood property legislation in a divorce.

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Household Code Part 2640 Is Usually Litigated In Divorce Circumstances

In relation to california divorce instances, household code part 2640 is utilized in a number of litigation proceedings. / in california divorce dictionary / by justin reckers. Right here, separate property reimbursement rights below household code 2640 refers particularly to the usage of separate property to the acquisition of a neighborhood property asset .

Determine Whether A Transmutation Occurred As To The Separate Property Contributions And Whether The Form Of Title Presumption Applies

In order to figure out whether a transmutation occurred, couples must look to the Family Code sections 850 through 853. These sections claim that transmutation is not valid unless it is written through an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. As long as the transmutation statutory requirements are met, the transmutation of the character of the property can be valid from separate to community property or community to separate property.

In order to figure out whether the Form of Title presumption applies, spouses must turn to the California Evidence Code Section 662. California law claims that the title is presumed to be as stated unless disputed by clear and convincing evidence. It is generally found that the California Evidence Code Section 662 often conflicts with the transmutation statutes set forth in the Family Code.

Related: Transmutation of Property in a California Divorce

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Identify For What Expense The Property Was Used

Under California law, not every expenditure of separate property will qualify for reimbursement. California Family Code 2640 specifically states that parties can be reimbursed for only specific expenses. These expenses include, and are limited to:

  • Payments that reduce the principal of a loan that was used to finance the purchase of the property
  • Payments for improvements
  • Payments that reduce the principal of a loan that was used to finance the improvement of the property

These limitations mean that there are many circumstances where someone may spend their separate property on community property, but not be entitled to reimbursement. Here are two common situations where this is the case:

Situation A When someone has used separate property to pay down the mortgage on a residence. Mortgage payments include payment of principal and interest. While you can be reimbursed for the paydown of the principal, you cannot receive reimbursement for the payment towards the interest.

Situation B When separate property is used to pay for maintenance on property. While it may be necessary to maintain the function of the property, it is not an improvement and therefore will not entitle you to be reimbursed for those funds.

Family Code 2640 Separate Property Reimbursements

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Family Code 2640 Separate Property Reimbursement Claims What are they?

Family Code Section 2640

Contributions to the acquisition of property, as used in this section, include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property.

In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the partys contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.

House Prior to Marriage

You own a house prior to marriage, but there is a mortgage when you get married. You know the community acquires a Moore-Marsden interest on it.

House Purchased During Marriage

Lets say you bought a house during the marriage. Its community property because it was acquired after the date of marriage. However, your parents gifted you $100,000 downpayment to buy it. Do you get this back?

Do you get interest on this $100,000? NO.


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Determine Whether The Spouse Is Entitled To Separate Property Reimbursements Under Family Code Section 2640

Family Code Section 2640 provides a limited reimbursement of state property contributions as part of the community estate under the Family Code. This means that as long as the spouse who made the separate property contributions towards the acquisition of community property can trace those contributions back to a separate property source, then the contributions can be reimbursed. The one exception to this ruling is if the spouse waived the reimbursement in writing or signed writing that has the effect of a waiver. However, the amount of reimbursement does not include interest or appreciation, and cannot exceed the net value of the property at the time of division.

Contributions are limited to improvements, down payments, and the reduction of the principal of a loan that financed the purchase or improvement of the property. Contributions cannot include the interest paid on the loan or payments for insurance, maintenance, or taxation of the property.

Bremer Whyte Brown & Omeara Is Ready To Assist You

If you are seeking an experienced attorney to guide you through the sophisticated legal issues of your divorce, you should consult one of our experienced attorneys at Bremer Whyte Brown & OMeara for advice. Our dedicated team of lawyers has the necessary background and understanding of California family law to help you protect your legal interest in matters such as property division in divorce cases.

For an initial consultation, please call Bremer Whyte Brown & OMeara at or contact us online today.


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How Do You Transmute Separate Property To Community Property

The laws on transmutation can vary from state to state. However, in general, there are some legal requirements surrounding the valid transmutation of property.

For example, lets say an individual purchases a home. A few years later, they get married, and they want to show intent that their spouse has equal ownership of the house. In order for the transmutation to occur, they then must retitle the home so that it shows both spouses names.

Later on, in the divorce, the original owner cannot argue that the house is separate property because they intentionally transmuted the property so that it is community property. Such decisions should be made very carefully.

Courts generally follow three steps to determine whether a transmutation process is valid in the eyes of the law. The specificity of these steps may vary from state to state. Below, we provide an outline of the steps used by California courts to help illustrate:

1. In Step 1, a court will determine whether a transmutation follows the formal requirements. In California, these are listed in California Family Code 852. This code dictates that the transmutation must have been made in the shape of a written, express declaration in which the spouse accepted that their interest in their property would be impacted adversely.

How Does Community Property Work

How to Calculate Community Property Rights in California Family Law

In these states, each individual in a marriage owns a share of any property and assets that were acquired during the marriage.

So how does community property work in these states, exactly? The answer is not simple, as each state may apply community property rules in different iterations.

In California, for example, community property is divided exactly in half. Each spouse receives 50 percent of all assets acquired during the marriage, regardless of income and who financed the purchase. In Texas, a judge may divide the assets in any proportion that appears equitable to either spouse.

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The Evolution Of Divorce And Property Division In California

California laws for property division in divorce has undergone significant change over the years. Due to its Spanish roots, California began as a community property state, in which all property acquired during the marriage is part of the community thus subject to equal division in divorce. Divorce in California really took off in 1969 when Governor Ronald Reagan signed into law no-fault divorce making California one of the first no-fault divorce states. The new law eliminated the need for couples to articulate spousal wrongdoing in pursuit of a divorce. In the decades that ensued, almost every state in America would follow Californias lead and enact no-fault divorce of its own. This legal transformation would open the floodgates to divorce in the United States. From 1960 to 1980, the divorce rate more than doubled. With the major influx of California divorce came novel legal questions on how to fairly divide property between divorced spouses. The California legislature and judiciary would create new laws to address these issues.

If you are seeking information or counsel regarding estate planning or protecting your property during divorce, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri we offer free half-hour consultations. We also offer free wills to all of our family law clients during the process of their divorce.

Community Property Interest In Separate Property Moore/marsden Formula

Lets change the facts in the above example and say that Husband didnt sell his house. Instead, lets assume that Husband kept the house he owned prior to marriage and Wife moved in with him after getting married. The parties then reduced the mortgage on the house using community property funds. After the marriage ends, would Wife have any interest in the house?

The simple answer is yes Wife would be entitled to her community interest in the home. But things can get much more complicated when determining the exact amount each party is entitled to. Fortunately, there is a single formula Riverside family courts look to when faced with these types of situations, the Moore/Marsden formula.

The Moore/Marsden formula derives its name from two cases decided by the Supreme Court of California in the early 1980s: and . In essence, both of these cases involved calculating the community property interest in real property that was acquired by one spouse before the marriage. Instead of giving a detailed explanation of Moore/Marsden formulas logistics, it would be easier to understand how it works by examining the following example:

The above example represents a more dulled down Moore/Marsden scenario compared to what separating parties normally face. Frequently, there are a number of related issues that can cause make applying the Moore/Marsden formula even more complicated.

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