Legal Question in Family Law in California
I am going through a divorce and one of the issues I would like clarity on involves a stock account that my husband inherited before the date of marriage. He inherited this account from his grandfather and during our 20 years of marriage the stock was sold, borrowed against and new stock was bought. It was an ongoing process throughout our 20 years of marriage and I truly believe that he comingled funds from the community at least some of the time when he was buying and sometimes when paying off loans taken against the stock. He insists that he only traded and paid off within the account and never used any money that came from outside the account. He can only get records from now until 1999, so that leaves 14 years of records he cannot get. The other issue with this account is that we sold $100,000.00 worth of stock (which wasn't the original stock) to buy our house in 2000. He is also claiming that the downpayment should be credited to him since it came out of "his account". My question is, who has the burden of proof? Would it be worth going in front of a judge to get this issue resolved?
2 Answers from Attorneys
Comingling alone does not change the character of the property automatically. Unless he used the stock account essentially as a community account so that its separte character was lost, you have a significant burden of proof that any of the account is community funds. You may be able to prove a community contribution for which there is a right of reimbursement, but if you can't prove comingling during the last ten years for which records are available, you haven't got much to go on. Where did the money go that was taken out of the stock account if any? Are those account records available? Was community money put into the stock account? If so, are the records available for the account(s) the money came from? If you can't find any proof in the last ten years and/or from the accounts on the other side of any comingling transactions, you're not going to get very far in front of a judge.
As for the $100,000 downpayment, unless you can establish the money was community funds, he is entitled to a credit for that.
Comingling alone does not change the character of the property automatically. Unless he used the stock account essentially as a community account so that its separte character was lost, you have a significant burden of proof that any of the account is community funds. You may be able to prove a community contribution for which there is a right of reimbursement, but if you can't prove comingling during the last ten years for which records are available, you haven't got much to go on. Where did the money go that was taken out of the stock account if any? Are those account records available? Was community money put into the stock account? If so, are the records available for the account(s) the money came from? If you can't find any proof in the last ten years and/or from the accounts on the other side of any comingling transactions, you're not going to get very far in front of a judge.
As for the $100,000 downpayment, unless you can establish the money was community funds, he is entitled to a credit for that.
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