swalker4 said:
our situation is a mess, my fiance has been trying to get a divorce for almost 2 years now. his ex won't agree to anything and is making it difficult. when he filled out the original income & expense report over a year ago, we were not engaged and our finances were not merged. the divorce was filed in california in may of 1999 and he was transferred to the state of washington (he's in the navy) in february 2000. my question is this, should i separate my income and finances from our joint account until this is all over with or can he declare the income and expenses that he is responsible for? if he puts what is in the checking/savings accounts that we share, will that be factored into the divorce settlement? can she touch my money? help!
My response:
Few married couples structure their financial lives anticipating the possibility of divorce or death. Until dark clouds appear on the marital horizon a "what’s mine is yours and yours is mine" attitude usually prevails. Separate and community funds are frequently commingled in joint bank accounts from which property is purchased and community expenses are paid. On dissolution, determining the character of the funds in the account and the character of property purchased with funds previously deposited and withdrawn will present a difficult challenge to his attorney and the court who must untangle an often confusing web of financial transactions.
Property does not lose its character as community or separate because of a change in form. However, if a litigant is unable to trace an asset through its various permutations the general presumption that it is all his separate property will prevail and the asset, if acquired during marriage, will be characterized as community property. The same rule applies to funds commingled in an account and property purchased with such funds. If funds are paid from a commingled account, the presumption is that the funds are community funds. [Re Marriage of Mix (1975) 14 Cal 3d 604, 122 Cal Rptr 79, 536 P2d 479; In re Marriage of Marsden (1982, 1st Dist) 130 Cal App 3d 426, 181 Cal Rptr 910]
In order to overcome this presumption, a party must trace the funds expended to a separate property source. [In re Marriage of Frick (1986, 2nd Dist) 181 Cal App 3d 997, 226 Cal Rptr 766]
Tracing is a problem with commingled accounts because of the fungible nature of money placed on deposit with financial institutions and the nature of transactions from those accounts; multiple deposits and withdrawals occur over time, interspersed with multiple purchases of items with withdrawn funds. Two methods of tracing funds in commingled accounts have met with court approval. Any evidence tending to establish the source of funds contained in any account or used to purchase an asset will be considered in the review of her claim against your boyfriend.
Just keep in mind, like everything else, when "tracing" must be done, this increases the costs of litigation. She will claim that the money in the account is all his, and he will claim that part of the money is yours, which will require an accounting, and that accounting will cost him - - as opposed to having a "pure" account.
In short, get and keep your money out of any joint accounts. Until this matter is finished, and you are married, you are better off keeping all of your accounts separate, lest your money be used as a bludgeon against him in court.
Good luck to you.
IAAL
