My response:
All property acquired during marriage and before separation, other than by gift or inheritance (Ca Fam § 770(a)(2)), is presumptively community property. [Ca Fam §§ 760, 771(a), 772; Marriage of Lehman (1998) 18 Cal.4th 169, 177, 74 Cal.Rptr.2d 825, 828]
Tracing rebuttal: Unless the more stringent § 2581 CP joint title presumption applies, the general § 760 community property presumption may be rebutted by tracing a marital acquisition to a separate property source. [Marriage of Haines (1995) 33 Cal.App.4th 277, 290, 39 Cal.Rptr.2d 673, 681 (citing text); see Marriage of Dekker (1993) 17 Cal.App.4th 842, 848, 21 Cal.Rptr.2d 642, 645, fn. 8]
"Property" subject to CP interest: Occasionally, disputes concerning an "acquisition" during marriage will turn on the threshold issue whether an asset is "property" to which a community ownership interest may attach.
"Community property" does not encompass every right or advantage acquired during marriage. Notably, a mere expectancy cannot be a "property" interest (Ca Civil § 700). [Marriage of Spengler (1992) 5 Cal.App.4th 288, 297, 6 Cal.Rptr.2d 764, 770-771; Marriage of Lorenz (1983) 146 Cal.App.3d 464, 467, 194 Cal.Rptr. 237, 239
The general rule that marital acquisitions are community property is displaced when the manner of acquisition is by gift or inheritance:
Property acquired during marriage by "gift, bequest, devise, or descent" (i.e., inter vivos or testamentary gift or intestate succession) is the acquiring spouse's separate property. [Ca Const. Art. I § 21; Ca Fam § 770(a)(2)]
Ca Fam § 760 is applied as a rebuttable presumption affecting the burden of proof. Hence, once an asset is shown to have been acquired by either spouse during marriage (other than by gift or inheritance), it will be treated as community property unless proved otherwise (see below). The party contesting community property status bears the rebuttal burden. [Marriage of Mix (1975) 14 Cal.3d 604, 610-611, 122 Cal.Rptr. 79, 83; Marriage of Haines, supra, 33 Cal.App.4th at 290, 39 Cal.Rptr.2d at 681; see, e.g., Marriage of Leversee, supra, 156 Cal.App.3d at 898, 203 Cal.Rptr. at 483--Audi vehicle characterized under general CP presumption where spouse couldn't meet burden of tracing to SP source and no other evidence of contrary status]
Burden of proof? The cases give mixed messages as to the quantum of proof the contesting party must present to overcome the presumption.
Clearly, as a matter of statute, where the CP character is stated in record title, the higher clear and convincing evidence burden of proof applies. [Ca Evid § 662]
Otherwise, the contesting party should be held to the normal preponderance of the evidence standard (Ca Evid § 115). [See Marriage of Haines, supra, 33 Cal.App.4th at 290, 39 Cal.Rptr.2d at 681]
There is also authority, however, stating the general CP presumption can be overcome only by clear and convincing evidence. [See Gagan v. Gouyd (1999) 73 Cal.App.4th 835, 843, 86 Cal.Rptr.2d 733, 738]
The Gagan position (higher "clear and convincing evidence" burden) is questionable. The opinion cites authority (Marriage of Ashodian (1979) 96 Cal.App.3d 43, 47, 157 Cal.Rptr. 555, 558) which itself concerned, and relies on a line of cases concerning, the separate property presumption attaching to a wife's pre-1975 acquisitions by an instrument in writing (Ca Fam § 803(a)). Language in those cases stating the higher quantum of proof standard also applies to the general community property presumption is arguably dictum.
Any form of rebuttal evidence: Since Ca Fam § 760 is not a "title" presumption, virtually any credible evidence may be used to overcome the presumption. [Marriage of Haines, supra, 33 Cal.App.4th at 290, 39 Cal.Rptr.2d at 681 (citing text)] This includes:
Tracing the asset to a separate property source. [Marriage of Buol (1985) 39 Cal.3d 751, 762, 218 Cal.Rptr. 31, 38; Marriage of Haines, supra, 33 Cal.App.4th at 290, 39 Cal.Rptr.2d at 681 (citing text); see Marriage of Dekker (1993) 17 Cal.App.4th 842, 848, 21 Cal.Rptr.2d 642, 645, fn. 8] Evidence that the item was acquired as a gift. [Marriage of Haines, supra, 33 Cal.App.4th at 290, 39 Cal.Rptr.2d at 681 (citing text)]
So, if you can trace the downpayment to your inheritance, you would then get your money first - - off the top - - and then the community property value of the house would then be split between you. She can rebut your contention by saying and arguing that your downpayment was a "gift to the marriage" and, in that case, if the judge agrees, the house would be split evenly between you - - in essence, sharing your inheritance with your wife.
IAAL
