Legal Question in Family Law in California
Property division in divorce, both within a Living Trust and property not in the
I funded all assets in our Living Trust done 1 year into a 2 year marraige. Now she is claiming half MY assets in divorce. Is there legal precedent for separate property retaining its SP character in the LT; that it was a ''gift'' for Probate/Estate Planning purposes ONLY, NOT for Family Law Code purposes? She is claiming I truly ''gifted'' half my assets. Relatedly, I bought a house with my Mother's inheritance, registered it jointly (not in the LT) and she started that which lead to our divorce before the ink was dry on my investing my inheritance jointly. Is there any concept of ''marital bad faith/fraud'' which would protect MY assets, both in and not in the LT? My attorney is unsure of these areas.
2 Answers from Attorneys
Reply: Property division in divorce, both within a Living Trust and property not
Assets accumulated between the date of marriage and the date of separation are presumed to be community property whether or not they are in a living trust. You will have the burden of tracing your separate property if it was used to accumulate assets during the marriage. These can be complex issues. I suggest that you consult with an experienced family law lawyer.
Good luck to you!
Brian Levy, Esq.
Law Offices of Brian Don Levy
Re: Property division in divorce, both within a Living Trust and property not in
The trust should have language stating that separate property remains separate and community remains community. If it does not, Probate Code sections 104 and 104.5 state that community and quasi-community property retains its character inside the trust.
Have your attorney review the trust to see if it deals with this issue.
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