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Roger
Roger, Attorney
Category: Family Law
Satisfied Customers: 27211
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I live in California. Ive been married for 12 years. I

Customer Question

I live in California.
I've been married for 12 years.
I owned a property before my marriage (property-A).
I Sold property-A during my marriage and used the proceeds to purchase property-B for cash.
While I was in escrow for property-B, I decided to get a loan after close of escrow.
I found a lender who said they will lend me the money but wanted my wife's name to be on the Note and Deed of Trust. I thought in order for my wife's name to be on the deed of trust her name has to be on the Grant Deed as well. So before I close escrow I asked escrow to add my wife's name to the title. Escrow asked me if I wanted to have the vesting as joint tenants and since I didn't know anything about different types of vesting I said yes.

Now we are getting a divorce and my wife says property-B has been transmuted and is Community property even though 100% of the money came from the sale of my separate property-A.

My wife believes this is a transmutation while I think it is not because transmutation happens when you already OWN a separate property and then you add your spouse's name on its title. In this case I did not own the property, I purchased it with my separate funds and put it in both of our names.

Question 1: Should I agree that this is a transmutation and go with the following rule which most likely be in my favor:

Presumption of Undue Influence:

When an interspousal transfer benefits or "advantages" one spouse, there is a presumption that the transaction was induced by undue influence. [See Marriage of Bonds (2000) 24 C4th 1, 28.] The burden is on the benefited spouse to dispel the presumption. That spouse must prove by preponderance of the evidence that the transaction was freely and voluntarily entered into, with full knowledge of all the facts and a complete understanding of the transfer's effect. [Marriage of Haines (1995) 33 CA4th 277, 296, 297.]

This presumption prevails over the EC §662 presumption in favor of record title because of the policy of protecting spouses and because the undue influence presumption is more specific. [Marriage of Delaney (2003) 111 CA4th 991, 996–998; see §2.02.] This presumption may apply to undo a transmutation that was so grossly one-sided and unfair as to be the product of undue influence. It does not apply, however, to establish a transmutation that fails to comply with FC §852(a). [See §7.02.] Absent a transmutation by an express declaration, there is no basis for applying the presumption of undue influence. [Marriage of Benson (2005) 36 C4th 1096, 1111–1112.]

Question 2: Would it be better if I say this is not a transmutation, and what will happen if I do that?
Submitted: 1 year ago.
Category: Family Law
Expert:  Roger replied 1 year ago.

Kirk Adams : Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question. I'll be glad to assist.
Kirk Adams : Under California law, separate property can be turned into community property/transmuted when your spouse’s name is XXXXX XXXXX the property, when community funds are used to maintain or care for the separate property, or when the separate property is commingled with community property. If this occurs, the community develops an interest in all or part of the separate property.
Kirk Adams : Thus, if you placed your wife's name on the title to the property (deed), then it is very likely that the property has been transmuted.
Kirk Adams : It would be tough -- if not impossible -- to try and claim the property as separate.
Customer:

I already know what you have mentioned. I've been researching this online for a while now. I need to know the answer to my specific questions.

Kirk Adams : However, you can try to claim that you were unduly influenced.
Customer:

But is this a transmutation?

Kirk Adams : Yes - - if you put her name on the deed, it's community property.
Customer:

If you search the meaning of transmutation you see that it says when you already own a property and convert it into community its is transmutation. I did not own the property before her name was added.

Kirk Adams : Ok. I thought you said you purchased property B for cash and THEN later decided to borrow money, and at that point she was added to the deed in order to get the loan.
Kirk Adams : IF you NEVER owned the property separately, then it is absolutely commuity property because you purchased it together. There would be no transmutation because you didn't own it previously - - it would be community property from the inception.
Customer:

No. I purchased the property for cash and put it in both of our names so that later I could get the loan.

Customer:

But all the money was my separate assets.

Kirk Adams : If you used separate funds to purchase the property, you would be able to claim those funds as your basis in the property and seek that the equitable distribution of funds be based on the amount you paid with separate funs.
Customer:

What about the Moore & Marsden formula?

Kirk Adams : That rule deals with buying property PRIOR to marriage with a down payment from your own funds, but make payments with community funds during marriage. I don't think that what you're dealing with here.
Customer:

Can you give me one or two similar cases so I can study them?

Customer:

I've studied cases involving transmutation but couldn't find any cases similar to mine.

Kirk Adams : I don't think you're dealing with a transmutation situation. Instead, you're going to be looking at division of the community property based on the investment of separate funds.
Kirk Adams : Under Family Code 2640, you have the right to be reimbursed for the party's contributions to the acquisition of the property to the extent the party traces the contributions to a separate property source. The amount reimbursed will 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. Contributions to the acquisition of the property include down payments, 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.
Kirk Adams : Here's a link to the code section: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2640-2641
Customer:

What happens when a husband puts down say 80% and wife puts 20% of the down payment and take joint tenant title? how is that divided?

Kirk Adams : IF the payments were made with totally separate funds, then the each spouse should be entitled to his/her investment made.
Kirk Adams : If there's any equity in the property, it would be divided equally.
Customer:

even though husband's investment was much higher?

Kirk Adams : Yes.
Customer:

how can i find similar cases to this one to study them?

Kirk Adams : Section 2640 says that the spouse would have the right to be reimbursed for his/her CONTRIBUTION to the acquisition of the property TO THE EXTENT the party traces the contributions to a SEPARATE PROPERTY SOURCE. It doesn't say anything about the percentage paid.
Kirk Adams : Well, you really don't need a case - - Family Code 2640 tells you exactly this.
Customer:

But this was done in order for me to get a loan. Just like when one spouse signs a quit claims deed to the other spouse so they could get a better loan

Customer:

doesn't the law say it doesn't matter whose name its in whats important is where the funds came from

Kirk Adams : Yes, that's what the law says, and that is what 2640 says, too - - we agree on that. BUT the property is stil community property.
Kirk Adams : Since it's community property, the spouse who used separate funds to purchase the property would be entitled to reimbursement of those funds ONLY.
Kirk Adams : However, if there's equity in the property over and above the purchase price, then that equity would be community property and would be divisible between the two spouses.
Customer:

I think I need to find a few cases similar to mine and study them before doing anything

Kirk Adams : I can pull you the annotations (reported case law from section 2640) for you to review, but it's going to take some time on my part to do the research.
Customer:

can we look at this from a different POV. Money is property, right? I owned the property (the money) then I converted that property into community property

Customer:

that would be transmutation, is it not?

Kirk Adams : Money is personal property, yes, and you converted that property to purchase the REAL PROPERTY. I understand the analogy, but it's not a legally sufficient claim.
Kirk Adams : CASH is not the same as the REAL ESTATE purchased - - so it's not transmutation.
Kirk Adams : Transmutation must involve the SAME EXACT property.
Customer:

OK. can you please find me a few similar cases?

Kirk Adams : Like I said, I can provide you with the annotations to 2640, which will be ALL reported cases regarding a spouse's right to recover separate property that was used to purchase community property.
Customer:

OK.

Kirk Adams : However, because of the time and expense (l must access a pay site to get the information), I would ask that you go ahead and positively rate our conversation so I'll get credit for assisting you. The question will not close, and we can continue our discussion. It's just assurance that I don't do the research and spend the money necessary to get the info without the assurance of getting credit.
Customer:

OK.

Roger, Attorney
Category: Family Law
Satisfied Customers: 27211
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 4 other Family Law Specialists are ready to help you
Expert:  Roger replied 1 year ago.
1. Generally

In marriage dissolution proceedings the trial court erred in allowing the wife a $53,000 reimbursement under formerCC § 4800.2, for using $40,000 in her separate property funds to extinguish $53,000 in encumbrances on the community residence. There was no evidence that the wife expected a reimbursement greater than her contribution. She could have evidenced such an expectation by placing a $13,000 lien on the property at the time she paid off the debt. Thus, the community, rather than the wife, was entitled to benefit from the $13,000 saved. Such a conclusion comported with the definition of "contributions to the acquisition of property" in the last sentence of formerCC § 4800.2, which refers only to "payments" in the context of reducing the principal of a loan. In re Marriage of Tallman (1994, Cal App 4th Dist) 22 Cal App 4th 1697, 28 Cal Rptr 2d 323, 1994 Cal App LEXIS 192.

In a marital dissolution proceeding, the trial court did not err in granting the husband's motion for a new trial on the issue of the character of properties which the husband had owned before the marriage, but which, during the marriage, he had transferred to himself and the wife as joint tenants. Six days after entry of judgment declaring the properties to be community property, the California Supreme Court held that former CC § 4800.1 (now Fam. Code, §§ 2580, 2581) (presumption that property acquired during marriage in joint form is community property), applies retroactively. The Supreme Court's statements in that opinion suggest that it would apply both former CC §§ 4800.1 and 4800.2 (now Fam. Code, § 2640) (party is entitled to reimbursement for separate property contributions to community property unless right to reimbursement waived in writing), retroactively to dissolution actions brought after the effective date of the provisions, regardless of the date of the property transfers. In re Marriage of Heikes (1994, Cal App 2d Dist) 26 Cal App 4th 830, 36 Cal App 4th 1, 31 Cal Rptr 2d 721, 1994 Cal App LEXIS 704, review gr, depublished (1994, Cal) 35 Cal Rptr 2d 268, 883 P2d 386, 1994 Cal LEXIS 5396.

In a marital dissolution proceeding, commenced in 1990, involving two parcels of real property the husband had owned separately, but which during the marriage in 1976, he transferred to himself and the wife as joint tenants, the husband was not entitled to retroactive application of former CC § 4800.2 (now Fam. Code, § 2640) (party is entitled to reimbursement for separate property contributions to community property unless right to reimbursement waived in writing). Although former CC § 4800.2, enacted in 1984, was amended to make the statute apply retroactively, applyingit retroactively to property obtained before 1984 is unconstitutional, since to do so deprives a party of vested property rights without due process of law. In this case, although the parties were on notice of the statute several years before commencing the dissolution, the wife's only method of protecting her rights under the statute would have been to seek a written waiver from the husband. Regardless of the husband's generosity in originally conveying the property, it was unlikely the wife could obtain such a waiver. Moreover, allowing retroactive application would undermine the public interest in establishing uniform, predictable rules for the division of property. In re Marriage of Heikes (1995) 10 Cal 4th 1211, 44 Cal Rptr 2d 155, 899 P2d 1349, 1995 Cal LEXIS 4787.

In a marital dissolution action, there was insufficient evidence of tracing to support the trial court's finding of a separate property interest in the husband for improvements to the family home. Although the husband was entitled to reimbursement for any contributions to improvements of the family home to the extent he could trace the contributions to a separate property source (Fam. Code, § 2640, subd. (b)), the tracing ran through a commingled checking account into which the husband undisputedly deposited his inheritance, but into which the parties also regularly deposited his community property paychecks throughout the period of remodeling of the home. The husband had made withdrawals from a separate account; all funds in the account were his separate property (from his inheritance); the wife deposited the money into the parties' joint checking account. The husband had no records to show that the money went into remodeling. There was no proof of the balance in the joint account before the remodeling began, the total of community income deposited into the account, or the amounts withdrawn from the commingled account to cover family living expenses while the remodeling was going on. The husband's testimony that he intended the funds withdrawn from his separate property account to be used for that purpose was insufficient. There were no records to prove that community income in the joint account had been depleted at the time the remodeling was being done. In re Marriage of Braud (1996, Cal App 1st Dist) 45 Cal App 4th 797, 53 Cal Rptr 2d 179, 1996 Cal App LEXIS 476.

In a marital dissolution action, substantial evidence supported the trial court's finding that, under Fam. Code, § 2640 (reimbursement for separate property contributions to property acquisition), the husband had a separate property interest in money withdrawn from a joint account based on adequate tracing. The husband inherited money; after paying off the couple's mortgage, he was left with a sum which he deposited into an account which he had separately maintained; he thereafter withdrew some money which was deposited in the couple's joint checking account; later he converted the separate account to a joint tenancy account which the parties began to use for household expenses; additional community property funds were deposited from his paychecks; the husband withdrew the money in question, and the couple withdrew money for family living expenses from this commingled account. Thus, at least part of the withdrawal was the husband's separate property attributable to his inheritance. In re Marriage of Braud (1996, Cal App 1st Dist) 45 Cal App 4th 797, 53 Cal Rptr 2d 179, 1996 Cal App LEXIS 476.

In a marital dissolution action, the trial court erred when it refused to consider the husband's argument that, rather than a fixed sum for his separate property interest, he should recover a percentage of the proceeds from the deferred sale of the family home. Fam. Code, § 2640 (reimbursement for separate property contributions to property acquisition) was not intended to apply where an out-spouse has a separate property interest in a family home as to which a deferred sale order has been entered, effectively tying up an ex-spouse's separate property interest--potentially, for many years--without affording him or her an opportunity to benefit from any appreciation in the value of that interest during the deferral period. Application of the statute in the deferred sale context would be entirely inappropriate. It would be a windfall to the in-spouse (wife), whose community property share would continue to appreciate at the expense of the out-spouse's separate property share. The trial court could have reconfigured the title to the family home recognizing the parties as tenants in common with unequal ownership interests and, concomitantly, ordered that they be paid in proportion to those ownership interests at the time of sale of the family home. In re Marriage of Braud (1996, Cal App 1st Dist) 45 Cal App 4th 797, 53 Cal Rptr 2d 179, 1996 Cal App LEXIS 476.
Expert:  Roger replied 1 year ago.
In marital dissolution proceedings, a husband was entitled to reimbursement only for his separate property contributions to the acquisition of the couple's house--a community property asset--limited by the net value of the house at the time of division. However, he could not seek reimbursement from new community assets acquired with the proceeds of a loan secured by that house, since he had made no separate property contribution to the acquisition of those assets. The couple's house was acquired by the community when the husband converted title to joint tenancy. Thereafter, the proceeds of the loan secured by the house were community property. The couple took the money gained and acquired new community assets. Under Fam. Code, § 2640, subd. (b), each party retained the right to reimbursement from "the property" to which they had made their separate property contributions. That property was the original house, the value of which the parties had consciously diminished. Although § 2640, subd. (b), provides that a spouse shall be reimbursed for contributions to the acquisition of property "to the extent the party traces the contributions to a separate property source," tracing methods were of no benefit to the husband since the loan proceeds were 100 percent community property. In re Marriage of Walrath (1997, Cal App 1st Dist) 51 Cal App 4th 1504, 60 Cal Rptr 2d 132, 1997 Cal App LEXIS 11, review gr, depublished (1997, Cal) 63 Cal Rptr 2d 465, 936 P2d 471, 1997 Cal LEXIS 2313, superseded (1998) 17 Cal 4th 907, 72 Cal Rptr 2d 856, 952 P2d 1124, 1998 Cal LEXIS 1685.

On appeal from a marriage dissolution judgment, the Court of Appeal erred in holding that a spouse's right to reimbursement only attaches to the specific community property to which his or her separate property contribution was originally made, and does not carry through to other community property subsequently acquired with proceeds from the original acquisition. The phrase "the property" in Fam C § 2640 includes not only the specific community property to which the separate property was originally contributed, but also any other community property that is subsequently acquired from the proceeds of the initial property, and to which the separate property contribution can be traced. In re Marriage of Walrath (1998) 17 Cal 4th 907, 72 Cal Rptr 2d 856, 952 P2d 1124, 1998 Cal LEXIS 1685.

In a marital dissolution proceeding, the trial court erred in refusing to allow the husband to render an opinion as to the value of his separate property house when he acquired it, which house later became community property, and in ruling that the husband had failed to trace any separate interest in the property. First, the rationale for strict recordkeeping does not apply to a case where the asset is real property which was transmuted from separate to community property. In such a situation, there is no danger that without exact written records the community property presumption will be subverted because of the possibility that the asset was acquired with some community funds. Second, the separate property home is not inherently susceptible to a strict recordkeeping requirement. Finally, a strict recordkeeping requirement to establish the value of separate real property later transmuted into community real property runs contrary to the clear legislative purpose behind Fam C § 2640. The transmutation of one spouse's separate property house to community property is one of the most common occasions for Fam C § 2640 tracing. In light of the fact that an estimate of value is necessarily the best that can be achieved, imposition of a strict recordkeeping requirement would amount to nothing more than judicial repeal of Fam C § 2640. In re Marriage of Stoll (1998, Cal App 4th Dist) 63 Cal App 4th 837, 74 Cal Rptr 2d 506, 1998 Cal App LEXIS 394.

The bankruptcy court was correct in holding that the proceeds from the sale of a married couple's property had to be classified as property of the husband's bankruptcy estate. The couple's property was community. When the property was sold, the proceeds from the sale remained community property. Because the superior court in the couple's divorce proceedings had not yet divided the property at the commencement of the bankruptcy proceedings, the escrowed community property funds became property of the bankruptcy estate. Although the wife retained her Fam C § 2640 right to reimbursement for her separate property contribution to the community property, this separate property interest did not render the sale proceeds her separate property prior to division by the superior court. Dumas v. Mantle (In re Mantle) (1998, 9th Cir) 153 F3d 1082, 1998 US App LEXIS 21596, cert den (1999) 526 US 1068, 119 S Ct 1461, 143 L Ed 2d 547, 1999 US LEXIS 2626.

Fam C § 2640 provides for dollar-for-dollar reimbursement, but without interest, to a spouse who contributes separate property to the acquisition of community property to the extent he or she traces the contributions to a separate property source. In re Marriage of Koester (1999, Cal App 4th Dist) 73 Cal App 4th 1032, 87 Cal Rptr 2d 76, 1999 Cal App LEXIS 698.

Where one spouse started a single proprietorship business prior to marriage, but incorporated it during the marriage, the trial court erred when it applied the reimbursement statute (Fam C § 2640), reasoning that the community acquired the business by virtue of the incorporation, though no stock certificates were ever issued in which title somehow was transferred to the community. The spouse received reimbursement for the value of the business at the date of incorporation, but nothing by way of return on investment. A community does not acquire a separate property business merely because it is incorporated during the marriage, and here there was nothing to trigger any title presumption on which the Lucas decision (In re Marriage of Lucas (1980) 27 Cal 3d 808, 166 Cal Rptr 853, 614 P2d 285, 1980 Cal LEXIS 200, superseded by statute as stated in In re Marriage of Neal (1984, Cal App 1st Dist) 153 Cal App 3d 117, 200 Cal Rptr 341, 1984 Cal App LEXIS 1760, superseded by statute as stated in In re Marriage of Anderson (1984, Cal App 1st Dist) 154 Cal App 3d 572, 201 Cal Rptr 498, 1984 Cal App LEXIS 1912, superseded by statute as stated in In re Marriage of Hug (1984, Cal App 1st Dist) 154 Cal App 3d 780, 201 Cal Rptr 676, 1984 Cal App LEXIS 1925, 46 ALR4th 623, superseded by statute as stated in In re Marriage of Walrath (1998) 17 Cal 4th 907, 72 Cal Rptr 2d 856, 952 P2d 1124, 1998 Cal LEXIS 1685, superseded by statute as stated in In re Marriage of Koester (1999, Cal App 4th Dist) 73 Cal App 4th 1032, 87 Cal Rptr 2d 76, 1999 Cal App LEXIS 698, superseded by statute as stated in In re Marriage of Cochran (2001, Cal App 4th Dist) 87 Cal App 4th 1050, 104 Cal Rptr 2d 920, 2001 Cal App LEXIS 201, superseded by statute as stated in In re Marriage of Wolfe (2001, Cal App 3d Dist) 91 Cal App 4th 962, 110 Cal Rptr 2d 921, 2001 Cal App LEXIS 664, superseded by statute as stated in In re Marriage of Nicholson & Sparks (2002, Cal App 1st Dist) 104 Cal App 4th 289, 127 Cal Rptr 2d 882, 2002 Cal App LEXIS 5125, superseded by statute as stated in In re Marriage of Brooks & Robinson (2008, 4th Dist) 169 Cal App 4th 176, 86 Cal Rptr 3d 624, 2008 Cal App LEXIS 2421) turned and which the Legislature endeavored to correct by passing the reimbursement statute. In re Marriage of Koester (1999, Cal App 4th Dist) 73 Cal App 4th 1032, 87 Cal Rptr 2d 76, 1999 Cal App LEXIS 698.

The husband in a marital dissolution proceeding was entitled to reimbursement of funds paid from the separate property portion of his profit sharing plan as earnest money for obtaining a home construction loan (Fam C § 2640), except for $10,000 in interest reserve funds, since, as to the balance, a reasonable inference could be made that the entire sum was spent in reimbursable home construction expenses. In addition, school fees which were required in order to obtain a building permit were also reimbursable under § 2640. Since the Legislature's intent was to allow separate property reimbursement for home improvements, and payment of the school fee, which was not a tax, was mandatory in order to obtain a building permit, the fee was reimbursable as a home improvement expense. In re Marriage of Cochran (2001, Cal App 4th Dist) 87 Cal App 4th 1050, 104 Cal Rptr 2d 920, 2001 Cal App LEXIS 201.

In a dissolution of marriage proceeding, the trial court properly refused to reimburse the husband or the community for capital improvements made to the couple's residence, which the wife owned when she entered the marriage. Fam C § 2640, on which the husband relied, was inapplicable, since it addressed situations in which one spouse had used his or her separate property to purchase or improve community property. Nothing in § 2640 gave one spouse a right of reimbursement for separate property contributions made to the other spouse's separate property. Nor was the husband entitled to reimbursement under Fam C §§ 850 et seq. on grounds there was no writing to evidence that the separate property contributions were a gift to his wife. While Fam C § 852 addressed situations where a couple agreed to transmute the separate property or community property character of real or personal property, this case did not involve "transmutation" as such. Here, there was no dispute that the husband used his separate property funds to improve the wife's separate property residence. The improvements, however, had no value standing alone. They were part and parcel of the residence, which concededly was the wife's separate property. Hence, the improvements to the residence were not identifiable as an independent, severable item of property which could be the subject of a transmutation. In re Marriage of Cross (2001, Cal App 4th Dist) 94 Cal App 4th 1143, 114 Cal Rptr 2d 839, 2001 Cal App LEXIS 3720.

In a family law matter, a note and deed of trust executed by the husband to the wife to secure her separate property contributions to the family home did not constitute the wife's written waiver of reimbursement under Fam C § 2640(b). In re Marriage of Lange (2002, Cal App 2d Dist) 102 Cal App 4th 360, 125 Cal Rptr 2d 379, 2002 Cal App LEXIS 4674.

Separate property contributions to the acquisition of community property include payments for improvements. Bono v. Clark (2002, Cal App 6th Dist) 103 Cal App 4th 1409, 128 Cal Rptr 2d 31, 2002 Cal App LEXIS 5082, review denied (2003) 2003 Cal. LEXIS 1386.
Expert:  Roger replied 1 year ago.
Payment of community debts prior to the acquisition of property, and unrelated to any improvement of the property does not, under any reasonable construction of Fam C § 2640(b), convert the pre-separation payment of community debts into a reimbursable contribution of separate property to the acquisition or improvement of community property; therefore, a husband was not entitled to a credit for separate property used to pay off a community credit card, despite the fact that the reason for the payment was to reduce the couple's debt-income ratio prior to the purchase of a new home. In re Marriage of Nicholson & Sparks (2002, Cal App 1st Dist) 104 Cal App 4th 289, 127 Cal Rptr 2d 882, 2002 Cal App LEXIS 5125.

A spouse making a down payment with separate funds retains continuing and supervening property interests beyond the community interest. Traceable separate property retains its separate character. Mantle v. Dumas (In re Mantle) (Bankr. 9th Cir. Cal. 1996) 196 BR 513, 1996 Bankr LEXIS 624.

Trial court erred in finding that, upon dissolution of marriage, the wife was not entitled to any interest in another residence in which she, the husband, and the husband's mother held title as joint tenants because, under Fam C § 2581, the joint tenancy title was presumed to be community property, absent written evidence to the contrary; under Fam C § 2640, however, the husband was entitled to reimbursement for his separate property contribution to the parties' joint tenancy interest. In re Marriage of Weaver (2005, Cal App 4th Dist) 127 Cal App 4th 858, 26 Cal Rptr 3d 121, 2005 Cal App LEXIS 390.

Husband did not adequately trace his contributions to the marital residence because he did not establish how much equity he had at the time of marriage. In re Marriage of Geraci (2006, Cal App 2d Dist) 144 Cal App 4th 1278, 51 Cal Rptr 3d 234, 2006 Cal App LEXIS 1813.

Trial court did not err in a divorce proceeding in finding that spousal property transmutation agreement executed during the parties' marriage contained an express declaration sufficient to transmute former husband's separate property into community property as contemplated by Fam C § 852(a); transmutation did not affect the husband's right to seek reimbursement for his contribution of separate property to the community estate pursuant to Fam C § 2640(b). Marriage of Holtemann (2008, 2d Dist) 166 Cal App 4th 1166, 83 Cal Rptr 3d 385, 2008 Cal App LEXIS 1424, review denied Holtemann (Frank Gordon & Barbara), Marriage of (2008, Cal.) 2008 Cal. LEXIS 14366.

Husband did not have an interest in residential property that his wife sold to a third party where wife had taken title to the property at issue solely in her name without reference to the marital relation, with husband agreeing that title would be held solely in her name, which triggered the presumption that the property was wife's separate property; there was no testimony or other evidence from which a court could infer that husband and wife had an agreement or understanding that the property would be other than as stated in the deed. In re Marriage of Brooks & Robinson (2008, 4th Dist) 169 Cal App 4th 176, 86 Cal Rptr 3d 624, 2008 Cal App LEXIS 2421, rehearing denied In re Marraige of Michael Brooks and Annikkawa Robinson (2009, Cal. App. 4th Dist.) 2009 Cal. App. LEXIS 245, review denied Brooks (Michael W.) and Robinson (Annikkawa A.), Marriage of (2009, Cal.) 2009 Cal. LEXIS 3445.

Motion to reconsider, under Fed. R. Bankr. P. 9024 and Fed. R. Civ. P. 60(b)(1), an order that held that a bankruptcy estate owned 100 percent of a limited liability company (LLC) shares at the time of sale was denied because a debtor's wife was not entitled to a reimbursement right under Fam C § 2640(c) in the form of LLC shares because (1) even if § 2640(c) applied to the relevant time period, the argument that the wife's services to a restaurant were her separate property, which gave rise to her reimbursement right, failed because California law held that a spouse's effort, time, and skill provided during the marriage were community assets; (2) even if defendants, the debtor, his wife, the LLC, and a partnership, were correct in their legal theories, the wife had no reimbursement right of the LLC shares under § 2640(c) because, as of the petition date, the debtor held a 100 percent ownership interest in the LLC as his separate property, and thus it was property of the debtor's estate under 11 U.S.C.S. § 541, and as property of the estate, the automatic stay of 11 U.S.C.S. § 362(a) effected an immediate freeze of the status quo, thus preventing any of the debtor's 100 percent interest in the LLC shares from being transmuted into the wife's separate property; and (3) because there was no dissolution, there was no basis to conclude that Fam C § 2640(c) was even applicable to the facts of thecase. Schoenmann v. Chen (2009) 2009 Bankr LEXIS 2534.

2. Particular Actions

Because the purchase of a Porsche that a wife gifted to her husband could be traced entirely to the wife's separate property funds, the wife had a substantive right to reimbursement of those separate property funds under Fam C § 2640(b). In re Buie (2009, 4th Dist) 179 Cal App 4th 1170, 102 Cal Rptr 3d 387, 2009 Cal App LEXIS 1917.
Trial court, which ordered that plaintiff be reimbursed his $50,000 separate property down payment for a house, properly valued the community and separate property interests in the house; plaintiff did not contend that the $50,000 amount was in error and did not suggest some other means of calculating the amount of his reimbursement. In re Marriage of Starr (2010, 2d Dist) 189 Cal App 4th 277, 116 Cal Rptr 3d 813, 2010 Cal App LEXIS 1778.
Decisions Under Former CC § 4800.2Where a woman acquired a house as her separate property before her marriage and changed the form of title to the house to joint tenancy with her putative husband during the marriage, the measure of the value of the woman's separate property contribution to be reimbursed to her pursuant to CC § 4800.2, upon annulment of the marriage, was the value of the separate property equity in the house as of the date of its conversion into joint tenancy, to be increased by any other separate property contributions to the acquisition of the property as defined in CC § 4800.2. In re Marriage of Neal (1984, Cal App 1st Dist) 153 Cal App 3d 117, 200 Cal Rptr 341, 1984 Cal App LEXIS 1760.

In enacting CC § 4800.2, which provides that a spouse's separate property contribution to community property be reimbursed unless the spouse has made a written waiver of the right to reimbursement, the Legislature intended to overrule a prior Supreme Court decision that a separate property contribution to community property was presumed to be a gift in the absence of an agreement otherwise. In re Marriage of Neal (1984, Cal App 1st Dist) 153 Cal App 3d 117, 200 Cal Rptr 341, 1984 Cal App LEXIS 1760.

Where a woman purchased an automobile with her separate property money during marriage, the automobile was deemed to be held in joint tenancy by the woman and her putative husband by operation of law pursuant to Veh C §§ 4150.5, 5600.5, if it was registered in the names of the woman "or" the putative husband. In that case, the automobile would be presumed to be community property under CC § 4800.1, subject to the woman's right of reimbursement under CC § 4800.2, for her traceable contributions to its purchase from her separate property money. If the automobile was held in the name of the woman "and" the putative husband, or in their names as community property or in tenancy in common, CC § 4800.1, was inapplicable, and the automobile was the woman's separate property pursuant to oral agreement between the parties. In re Marriage of Neal (1984, Cal App 1st Dist) 153 Cal App 3d 117, 200 Cal Rptr 341, 1984 Cal App LEXIS 1760.

CC §§ 4800.1 and 4800.2, concerning the presumption that property acquired in joint tenancy during marriage is community property, applies to proceedings pending on January 1, 1984, if the property division at issue has not yet been adjudicated, if the adjudication is still subject to appellate review, or if the trial court has expressly reserved jurisdiction to make the adjudication. In re Marriage of Anderson (1984, Cal App 1st Dist) 154 Cal App 3d 572, 201 Cal Rptr 498, 1984 Cal App LEXIS 1912.

Under CC § 4800.2, creating a right of reimbursement for any separate property contribution to an acquisition affected by CC § 4800.1 (presumption that property acquired during marriage in joint tenancy is community property), provided there is no written waiver, a husband's execution of a joint tenancy deed as part of a transaction refinancing the home he acquired before marriage, was not a written waiver of his reimbursement rights. There was no evidence that the husband intended to give the wife a one-half share of the home, and under CC § 4800.2, such an intention could not be presumed. In re Marriage of Anderson (1984, Cal App 1st Dist) 154 Cal App 3d 572, 201 Cal Rptr 498, 1984 Cal App LEXIS 1912.

Under CC § 4800.2, creating a right of reimbursement for any separate property contribution to an acquisition affected by CC § 4800.1 (presumption that property acquired during marriage in joint tenancy is community property), and defining a "contribution to the acquisition of the property" to "include down payments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property," the forms of contribution are not limited to the forms enumerated in the statute. The term "includes" is ordinarily a word of enlargement and not limitation. The statutory definition of a thing as "including" certain things does not necessarily place thereon a meaning limited to the inclusions. In re Marriage of Anderson (1984, Cal App 1st Dist) 154 Cal App 3d 572, 201 Cal Rptr 498, 1984 Cal App LEXIS 1912.

CC § 4800.2, creating a right of reimbursement for any separate property contribution to an acquisition affected by CC § 4800.1 (presumption that property acquired in joint tenancy during marriage is community property), seeks to avoid the inequity which often requires the equal division of property taken in joint tenancy form despite a showing that one spouse had contributed a substantial portion of his separate property. Thus, a husband made a substantial contribution to the community when he unwittingly executed a joint tenancy deed to a home he had purchased before marriage and that had been in his family for 25 years, at the insistence of a loan officer as a last minute requirement for a home equity loan, and the husband was entitled to reimbursement under the statute. In re Marriage of Anderson (1984, Cal App 1st Dist) 154 Cal App 3d 572, 201 Cal Rptr 498, 1984 Cal App LEXIS 1912.

Under CC § 4800.2, a spouse who has contributed separate property funds to the acquisition of an asset which is placed in joint tenancy and thereby becomes community property under the CC § 4800.1, presumption, is entitled to reimbursement to the extent of the separate property contribution. Reimbursement is only permitted if the party traces the contribution to a separate property source. Tracing is the sole method by which the right to reimbursement can be established. The statute does not authorize reimbursement pursuant to an agreement of the parties. Contributions as defined in § 4800.2, include separate property gifts to a party which are then used to acquire the property placed in joint tenancy. In re Marriage of Martinez (1984, Cal App 1st Dist) 156 Cal App 3d 20, 202 Cal Rptr 646, 1984 Cal App LEXIS 2063.

CC § 4800.2, providing for reimbursement to a spouse of separate property contributions to property acquired in joint tenancy during marriage, which became effective on January 1, 1984, was applicable to a dissolution of marriage proceeding commenced before that date but which had not become final as of January 1, 1984. In re Marriage of Huxley (1984, Cal App 2d Dist) 159 Cal App 3d 1253, 206 Cal Rptr 291, 1984 Cal App LEXIS 2512.

Under CC § 4800.2, providing for reimbursement to a spouse of separate property contributions to property acquired in joint tenancy during marriage, a husband was entitled to reimbursement for down payments made on community real property acquired in joint tenancy during marriage made from his separate property, limited, however, to the separate property equity in the properties at the time of acquisition, without inclusion of any appreciation of the property. In re Marriage of Huxley (1984, Cal App 2d Dist) 159 Cal App 3d 1253, 206 Cal Rptr 291, 1984 Cal App LEXIS 2512.

In a marriage dissolution proceeding, the trial court properly awarded the wife reimbursement from the community for her separate property residence which she conveyed during marriage to herself and her husband and which became community property under CC § 4800.1. The trial court also properly ordered the wife to reimburse the community for one-half the amount of the increase in equity from the date of the joint tenancy deed to the date of separation, since this increase was caused by loan payments from community funds. Although the trial court did not apply CC §§ 4800.1, 4800.2, the result was correct under those statutes. In re Marriage of Benart (1984, Cal App 4th Dist) 160 Cal App 3d 183, 206 Cal Rptr 495, 1984 Cal App LEXIS 2531.

Under CC § 4800.2, the measure of reimbursement, upon dissolution of marriage, to a spouse who deeded a separate property residence to the community in the absence of a written waiver, is the value of the separate property equity in the property at the time of conversion, that is, the fair market value of the property less outstanding encumbrances and less any community property contributions prior to its conversion which are found not to be a gift to the separate property. The definition of "contributions to the acquisition of the property" contained in CC § 4800.2, refers to the acquisition of the property by the community and not an earlier acquisition as separate property by one of the spouses. In re Marriage of Benart (1984, Cal App 4th Dist) 160 Cal App 3d 183, 206 Cal Rptr 495, 1984 Cal App LEXIS 2531.

CC §§ 4800.1 and 4800.2, providing that on dissolution of marriage or separation property acquired during marriage in joint tenancy is presumed to be community property in the absence of written evidence to the contrary, and that the parties are entitled to reimbursement of their separate property contributions to the acquisition of the property, governed property rights of a husband and wife to a house acquired prior to the effective date of the statute that were not finally adjudicated when the statute took effect. Retroactive application of § 4800.1 did not deny due process to the husband, who had purchased the lot and entirely financed the home from his separate property funds. Section 4800.1 does not interfere with vested rights, but alters the evidentiary burden of proof when a husband and wife take property by a joint tenancy deed. In re Marriage of Taylor (1984, Cal App 3d Dist) 160 Cal App 3d 471, 206 Cal Rptr 557, 1984 Cal App LEXIS 2555.

CC § 4800.2, effective January 1, 1984, which requires reimbursement for separate property contributions to the acquisition of community property absent a written waiver, was applicable to an appeal from a trial court order in a dissolution action ordering the sale of the family residence and the division of the proceeds, where the residence was owned by the husband as his separate property prior to marriage, even though the trial was held prior to the statute's effective date. The appeal was pending on its operative date, and the language of the statute is mandatory. In re Marriage of McNeill (1984, Cal App 4th Dist) 160 Cal App 3d 548, 206 Cal Rptr 641, 1984 Cal App LEXIS 2563.

In a marriage dissolution proceeding, the husband was entitled to reimbursement under CC § 4800.2, for his separate contribution to the acquisition of the community residence, where the husband acquired the residence as his separate property prior to marriage, and after marriage the property was transferred by grant deed to the parties as husband and wife, raising a presumption of community property. Under § 4800.2, the value of the husband's equity in the residence at the time he changed title to community property, less any community contribution after marriage and before the transfer date, must be determined and reimbursed to him as his separate property contribution, absent any written agreement to the contrary. In re Marriage of McNeill (1984, Cal App 4th Dist) 160 Cal App 3d 548, 206 Cal Rptr 641, 1984 Cal App LEXIS 2563.

In consolidated actions in which an action for dissolution of marriage was consolidated with the husband's civil action to set aside a 1975 deed of the community residence to the wife, a stipulation entered into by the parties before trial, that the deed which the husband alleged was fraudulently procured by the wife was the 1975 deed, did not constitute a waiver of the husband's right to reimbursement for his separate contribution to the acquisition of the residence under CC § 4800.2, based on a 1972 deed by which the husband had conveyed the residence, which was his separate property, to the parties as husband and wife. Rather, it represented an agreement not to litigate any issue of fraud in the inducement of the 1972 deed. In re Marriage of McNeill (1984, Cal App 4th Dist) 160 Cal App 3d 548, 206 Cal Rptr 641, 1984 Cal App LEXIS 2563.

In a marriage dissolution proceeding, the wife was not entitled to reimbursement under CC § 4800.2 (reimbursement for separate property contributions to acquisition of community property) for her postseparation payments which reduced the loan on the family residence, and other payments for taxes, insurance, encumbrances, maintenance, and improvements, where her postseparation payments were far exceeded by the value of her use and occupancy during the time between separation and the trial of the dissolution action. Nor was she entitled to reimbursement for alleged improvements made after separation, where she failed to show that she made any substantial improvements, or that the money she expended on alleged improvements resulted in any increase in the market value of the residence. In re Marriage of McNeill (1984, Cal App 4th Dist) 160 Cal App 3d 548, 206 Cal Rptr 641, 1984 Cal App LEXIS 2563.
Expert:  Roger replied 1 year ago.
A statute is substantive in effect when it imposes a new or additional liability and substantially affects existing rights and obligations. Thus, CC § 4800.1, requiring a writing to prove, on dissolution of marriage, that property taken in joint tenancy form is the separate property of one spouse, is substantive when applied retroactively to transactions undertaken when an oral agreement was sufficient to rebut the community property presumption from joint tenancy. Section 4800.1 imposes a statute of frauds when there was none before, and, insofar as it applies retroactively, imposes an irrebuttable presumption barring recognition of the vested separate property interest. The provision (CC § 4800.2) for reimbursement of the separate property contributions to what is now conclusively presumed to be community property, regardless of the parties' intent, provides only superficial protection against a potentially devastating impact upon vested property rights. To the extent that § 4800.1 makes insurmountable demands on vested property rights, that it does so under the guise of an evidentiary rule is of little avail. In re Marriage of Buol (1985) 39 Cal 3d 751, 218 Cal Rptr 31, 705 P2d 354, 1985 Cal LEXIS 334.

CC § 4800.2, providing for the reimbursement of a party to a dissolution for contributions to the acquisition of community property traceable to separate property, applied to a dissolution proceeding which had not become final on January 1, 1984. The failure of the trial court to apply the statute required reversal as to its entire property division to reflect a just resolution of reimbursement of the husband, where the parties had no occasion to present evidence relevant to the statute, and where the husband's separate property contributions to pay off two purchase money loans were apparently interwoven with the acquisition of a restaurant during the marriage. In re Marriage of Grinius (1985, Cal App 4th Dist) 166 Cal App 3d 1179, 212 Cal Rptr 803, 1985 Cal App LEXIS 1906.

CC § 4800.2, which provides that a spouse is entitled to reimbursement for separate property contributions unless the spouse has expressly waived that right in writing, is applicable to proceedings which were instituted prior to the statute's enactment but which were not yet finalized after that date. In re Marriage of Palmer (1985, Cal App 2d Dist) 168 Cal App 3d 190, 214 Cal Rptr 79, 1985 Cal App LEXIS 2082.

CC § 4800.2, providing that a party is entitled to reimbursement of traceable separate property contributions unless there is a written waiver of reimbursement, which changed prior law that the spouse making the separate property contribution was presumed to intend a gift to the community, absent an agreement or understanding to the contrary, may not constitutionally be applied retroactively if it would impair the parties' contractual rights which had vested under prior law and in reliance on such law. Retrospective application of a statute may be unconstitutional if it is an ex post facto law, if it deprives a person of a vested right without due process of law, or if it impairs the obligation of a contract. The statute of fraud requirements embodied in § 4800.2, does not operate to correct any manifest unfairness in former law, and its retroactive application only minimally serves the state interest in equitable division of marital property. In re Marriage of Kahan (1985, Cal App 6th Dist) 174 Cal App 3d 63, 219 Cal Rptr 700, 1985 Cal App LEXIS 2724.

In a dissolution of marriage proceeding, the trial court erred in awarding the parties' condominium to the husband, under the retroactive application of CC § 4800.2 (providing for reimbursement of separate property contributions to the acquisition of community property). Retroactive application of § 4800.2 to this case was unconstitutional because it deprived the wife of vested rights without due process of law. The statute did not cure a rank injustice in the former law. Thus, although the condominium had been the husband's separate property prior to marriage, until he transferred it to himself and the wife as joint tenants, there was nothing so inherently unfair in preserving the condominium as community property free from reimbursement as to justify the impairment of the wife's vested community property rights in it by imposing a reimbursement requirement that was not present until § 4800.2 became effective. In re Marriage of Lachenmyer (1985, Cal App 4th Dist) 174 Cal App 3d 558, 220 Cal Rptr 76, 1985 Cal App LEXIS 2762.

CC § 4800.2, providing for reimbursement of separate property contributions to community assets absent a signed writing waiving such reimbursement, could not constitutionally (Cal. Const., art. I, § 7) be applied to decrease a wife's community property share in a motel acquired and divided as community property before the effective date of the statute. Because the husband failed to evidence any intent, by written or oral agreement during marriage, that his contributions to the community asset were to remain separate property, the law in effect at that time presumed a gift to the community. Because § 4800.2 violates the parties' legitimate expectations while failing to advance the state interest in equitable dissolution of the marital partnership, retroactive application would impair vested property interests without due process of law. (Disapproving statements to the contrary in In re Marriage of McDole (1985) 169 Cal App 3d 175, 215 Cal Rptr 116, 1985 Cal App LEXIS 1987; In re Marriage of Palmer (1985) 168 Cal App 3d 190, 214 Cal Rptr 79, 1985 Cal App LEXIS 2082; In re Marriage of McNeill (1984) 160 Cal App 3d 548, 206 Cal Rptr 641, 1984 Cal App LEXIS 2563; In re Marriage of Taylor (1984) 160 Cal App 3d 471, 206 Cal Rptr 557, 1984 Cal App LEXIS 2555; In re Marriage of Bernart (1984) 160 Cal App 3d 183, 206 Cal Rptr 495, 1984 Cal App LEXIS 2531; In re Marriage of Huxley (1984) 159 Cal App 3d 1253, 206 Cal Rptr 291, 1984 Cal App LEXIS 2512; In re Marriage of Koppleman (1984) 159 Cal App 3d 627, 205 Cal Rptr 629, 1984 Cal App LEXIS 2456; In re Marriage of Martinez (1984) 156 Cal App 3d 20, 202 Cal Rptr 646, 1984 Cal App LEXIS 2063; In re Marriage of Buford (1984) 155 Cal App 3d 74, 202 Cal Rptr 20, 1984 Cal App LEXIS 1963; In re Marriage of Anderson (1984) 154 Cal App 3d 572, 201 Cal Rptr 498, 1984 Cal App LEXIS 1912; In re Marriage of Neal (1984) 153 Cal App 3d 117, 200 Cal Rptr 341, 1984 Cal App LEXIS 1760.) In re Marriage of Fabian (1986) 41 Cal 3d 440, 224 Cal Rptr 333, 715 P2d 253, 1986 Cal LEXIS 322.

CC § 4800.2 (providing for reimbursement of separate property contributions to community property), may not constitutionally be applied to transactions that resulted in the creation of vested rights prior to its effective date. Milian v. De Leon (1986, Cal App 4th Dist) 181 Cal App 3d 1185, 226 Cal Rptr 831, 1986 Cal App LEXIS 1683.
In a marriage dissolution proceeding in which the trial court ruled that a parcel of property that had previously belonged to the husband's parents had been transmuted into community property by the actions of the parties during their 25-year marriage, the husband was not entitled to reimbursement pursuant to CC § 4800.2 (separate property contributions to acquisition of community property). Although the Legislature expressed an intent that § 4800.2 be applied to cases in which any purported agreement to transmute separate property occurred prior to the section becoming law, such retroactive application is unconstitutional, because vested property interests are impaired, and such impairment violates due process unless some significantly important state interest is promoted by retroactive application. In re Marriage of Schoettgen (1986, Cal App 5th Dist) 183 Cal App 3d 1, 227 Cal Rptr 748, 227 Cal Rptr 758, 1986 Cal App LEXIS 1780.

In a divorce proceeding, the trial court erred in applying CC § 4800.2 (in the division of community property a party is entitled to reimbursement for contributions to the acquisition of property to the extent he or she traces the contributions to a separate property source) to deny the wife's request for reimbursement of contributions made to the husband's separate property from a checking account that the husband had made a joint account on marriage, and to award reimbursement to the husband for all contributions made to community property from the joint account which the husband traced to his separate property. Chapter 49 of the Statutes of 1985- 1986 (an urgency statute making CC §§ 4800.1, 4800.2, applicable to all proceedings commenced on or after January 1, 1984, the effective date of §§ 4800.1, 4800.2, regardless of the date of acquisition of the property) impaired the wife's vested property rights without due process of law, where all property at issue was acquired or improved prior to 1984. Such retroactive application of § 4800.2, which gave the husband the right to reimbursement absent a written waiver, was not sufficiently necessary to the public welfare to justify the impairment of the wife's vested property rights, which under former law, required an agreement for reimbursement. In re Marriage of Griffis (1986, Cal App 5th Dist) 187 Cal App 3d 156, 231 Cal Rptr 510, 1986 Cal App LEXIS 2243.

In a marital dissolution action, the trial court erred in ordering that the husband be reimbursed for all of his postseparation, separate property costs for improving the parties' community residence as provided by CC § 4800.2. That statute could not be applied at the time the judgment had been rendered. As such, the husband was entitled to reimbursement for those costs only to the extent he could demonstrate that they had increased the fair market value of the residence, at least where he had unilaterally decided to incur the costs. In re Marriage of Reilley (1987, Cal App 6th Dist) 196 Cal App 3d 1119, 242 Cal Rptr 302, 1987 Cal App LEXIS 2406.

In a proceeding for dissolution of marriage, the trial court properly found that the wife was entitled to recover a farm she had conveyed to her husband and herself as husband and wife, which farm had been her separate property and which by the time of the proceeding had decreased to less than half of its value when conveyed, notwithstanding her acknowledged intent at the time of the conveyance to make the farm community property, where she had not signed a waiver of her right to recover the value of the equity she was contributing to the community. The applicability of CC § 4800.2 (right of reimbursement for separate property contributions to acquisition of property), is not restricted only to property held in joint tenancy. In re Marriage of Witt (1987, Cal App 5th Dist) 197 Cal App 3d 103, 242 Cal Rptr 646, 1987 Cal App LEXIS 2454.

CC § 4800.2 (right of reimbursement for separate property contributions to acquisition of property), does not merely create a presumption; it creates a new property right in the contributing spouse. In re Marriage of Witt (1987, Cal App 5th Dist) 197 Cal App 3d 103, 242 Cal Rptr 646, 1987 Cal App LEXIS 2454.

CC § 4800.2 (right of reimbursement for separate property contributions to acquisition of property), creates a substantive right of reimbursement in the contributing spouse that can be relinquished only by an express written waiver. In the absence of such a waiver, the donative intent of the contributing spouse does not bar reimbursement for separate property contributed after January 1, 1984. Once the trial court in a dissolution proceeding determines that the contributing spouse did give the property to the community after that date, and that the contributing spouse did not execute a written waiver, then the court is required to determine the equity value of the contributing spouse's property at the time of the gift and restore to him or her the value of that property (or the property itself where the present value is less than the original equity value). In re Marriage of Witt (1987, Cal App 5th Dist) 197 Cal App 3d 103, 242 Cal Rptr 646, 1987 Cal App LEXIS 2454.

In a divorce action, the trial court, in ordering that the husband be reimbursed for his separate property contributions to the community residence (CC § 4800.2), denied the wife due process. Although the trial took place after January 1, 1984 (the effective date of § 4800.2), the action commenced prior to that date. Thus, its application, which resulted in a direct contravention of prior law, impaired the wife's vested property rights, and was in opposition to the legislative intent of a 1986 amendment to § 4800.2 that made the statute inapplicable to judgments rendered prior to January 1, 1987, regardless of when they had become final. In re Marriage of Colombo (1987, Cal App 1st Dist) 197 Cal App 3d 572, 242 Cal Rptr 100, 1987 Cal App LEXIS 2487.

In a proceeding for dissolution of marriage, the trial court properly refused to apply CC § 4800.2 (permitting reimbursement of separate property contributions to community assets absent a written waiver of reimbursement), to the husband's claim for reimbursement for his separate property contribution to the couple's acquisition of a condominium, where the condominium was acquired before § 4800.2 was enacted and judgment was rendered before January 1, 1987 (the date on which amendments concerning retroactive application of the statute effective). The wife acquired a community property interest at a time when the only method of defeating or diminishing that right was by proof of an agreement to the contrary. By the time § 4800.2 was enacted, the husband and wife were already separated; the wife, therefore, had little, if any, opportunity to obtain a written waiver of the husband's right to reimbursement for his separate property contribution. In re Marriage of Hopkins & Axene (1987, Cal App 4th Dist) 199 Cal App 3d 288, 245 Cal Rptr 433, 1987 Cal App LEXIS 2505.

Where it was firmly established by the courts that CC §§ 4800.1 and 4800.2, changing prior law regarding the community property presumption of joint tenancy, and the entitlement to reimbursement for separate property contributions for community assets, could not be applied to property rights acquired before the effective date of the statutes, the constitutional defect could not be erased by mere legislative pronouncement. An after-the-fact legislative declaration of intent challenging Supreme Court precedent, by merely disagreeing with the judicial declaration as to constitutionality without defining a state interest sufficiently compelling to justify interference with vested property rights in addition to those already considered and rejected by the courts, could not itself create a compelling state interest such as would allow retroactive application. In re Marriage of Bankovich (1988, Cal App 4th Dist) 203 Cal App 3d 49, 249 Cal Rptr 713, 1988 Cal App LEXIS 670.
Expert:  Roger replied 1 year ago.
CC § 4800.2, providing that upon dissolution of a marriage, a party's contribution of separate property to the community is to be reimbursed in the absence of a waiver, applies to situations where a spouse conveys to the married couple title in joint tenancy property acquired by the spouse prior to the marriage. In that case, the measure of the separate property contribution subject to reimbursement is the equity value in the property at the time of its conversion to joint tenancy form. In re Marriage of Perkal (1988, Cal App 2d Dist) 203 Cal App 3d 1198, 250 Cal Rptr 296, 1988 Cal App LEXIS 767.

In dissolution of marriage proceedings, it was reversible error for the trial court, in dividing property, to apply to property acquired before January 1, 1984, the effective date of CC § 4800.2, which changed prior law that an agreement was needed to preserve a separate property interest in funds contributed to the acquisition of a community asset, so that a separate property interest is now preserved unless the right to reimbursement is waived in writing.

The retroactive application of § 4800.2, impaired vested property rights, and an August 1986, amendment including a codification of a statement of legislative intent that the statute corrected a "rank injustice" in the former law and furthered the state interest of having a single manageable and understandable body of law did not provide a sufficient basis for impairing vested property rights under governing judicial precedent. Thus, it is unconstitutional to apply § 4800.2 to property acquired before January 1, 1984, where the judgment is rendered after January 1, 1987. In re Marriage of Lockman (1988, Cal App 5th Dist) 204 Cal App 3d 782, 251 Cal Rptr 434, 1988 Cal App LEXIS 880.

In a dissolution of marriage proceeding the trial court properly denied the husband's motion for reimbursement for a separate property contribution to the acquisition of real property conveyed to him and his wife as joint tenants, despite CC § 4800.2, mandating reimbursement of those contributions on dissolution unless the contributing spouse has waived the right to reimbursement in writing, which altered the longstanding rule that separate property contributions to community assets were presumed gifts to the community absent a contrary agreement. The parties took title to the property in 1977, while the statute did not become effective until January 1, 1984. Even though the Legislature subsequently declared a compelling interest in retroactive application of § 4800.2, that statement of legislative intent did not alter the nature of the interest which the California Supreme Court and Courts of Appeal consistently found inadequate to justify retroactive application to property acquired before the effective date of the statute. Accordingly, application of § 4800.2 would impair the wife's vested property interest without due process. In re Marriage of Cairo (1988, Cal App 1st Dist) 204 Cal App 3d 1255, 251 Cal Rptr 731, 1988 Cal App LEXIS 914.

CC § 4800.2 (reimbursement for separate property contributions to acquisition of property), does not govern in a marriage dissolution proceeding filed after January 1, 1984, but involving property acquired before that time, where judgment was rendered prior to January 1, 1987. In re Marriage of Ditto (1988, Cal App 4th Dist) 206 Cal App 3d 643, 253 Cal Rptr 770, 1988 Cal App LEXIS 1161.

The limitations on reimbursement for separate property contributions to the acquisition of community property imposed by CC § 4800.2 (excepting interest payments from the amount reimbursable), are inapplicable to and do not limit the trial court's discretion in ordering reimbursement for postseparation separate property payments on community obligations. However, as to at least one category of property--a community asset being used by one spouse between separation and trial--no reimbursement should be ordered unless the amount of the debt payment greatly exceeds the value of the use of the asset. In re Marriage of Hebbring (1989, Cal App 1st Dist) 207 Cal App 3d 1260, 255 Cal Rptr 488, 1989 Cal App LEXIS 110.

In dissolution of marriage proceedings, the trial court properly denied the husband reimbursement for a separate property contribution to the purchase of the parties' former Washington State residence, where the property was acquired before CC § 4800.2, providing for reimbursement, became effective, and is not retroactive to property acquired before its effective date. It was immaterial that the residence was quasi-community property. California's marital property laws are designed to provide for uniform treatment of quasi-community and community property when the parties have changed their domicile to this state and seek to legally alter their marital status in a California court. California has no more significant interest in making the reimbursement statute retroactive with respect to quasi-community property than it does with respect to community property. The rule in each case should be the same. In re Marriage of Craig (1990, Cal App 1st Dist) 219 Cal App 3d 683, 268 Cal Rptr 396, 1990 Cal App LEXIS 370.

In a proceeding for dissolution of marriage, the trial court properly awarded unequal separate property interests in the family residence, despite the fact that the parties took title to the property prior to marriage as tenants in common and after their marriage converted title to a joint tenancy. Although tenancy in common raised a presumption of equal ownership, the court properly ordered unequal interests to compensate for the use of separate funds to purchase and improve the residence. Moreover, CC § 4800.2 (reimbursement for separate property contribution), was applicable, since the residence was converted into joint tenancy during the marriage. In re Marriage of Rico (1992, Cal App 1st Dist) 10 Cal App 4th 706, 12 Cal Rptr 2d 659, 1992 Cal App LEXIS 1252, superseded by statute as stated in In re Marriage of Romant (1993) 21 Cal. App. 4th 542, 1993 Cal. App. LEXIS 1315, 93 Cal. Daily Op. Service 9764, 93 D.A.R. 16635, superseded by statute as stated in In re Marriage of Weaver (2005, Cal App 4th Dist) 127 Cal App 4th 858, 26 Cal Rptr 3d 121, 2005 Cal App LEXIS 390.
Expert:  Roger replied 1 year ago.
That's all of the annotations for the statute and it's predecessor (Section 4800).

If you need anything further, please let me know.
Customer: replied 1 year ago.

I have sent a Notice To Produce Documents to my wife's attorney and requested the following information:


 


All medical records including but not limited to invoices, prescriptions, psychological evaluations, names and addresses of medical doctors, psychologists, psychiatrists, mental health institutions, and any other mental health professionals which you have visited for counseling, therapy, or as a patient, approximate dates, approximate number of hours, and reason for the visits, list of medications taken or prescribed medications which you did not take, prior to and after the date of your marriage.


 


All records including but not limited to, transcripts, grade reports, degrees, notes, memoranda, emails, correspondence or other documents and writings reflecting courses taken and studied in any school whether online or on campus, dates, names, addresses, contact information of all schools attended whether online or on campus, dates courses started and completed, number and cost of the units registered regardless of whether passed or not, during the period from date of marriage to the date of production.


 


Her response to the medical records was:


I object to such request as irrelevant and privileged under physician/patient privilege


 


(My wife has many psychological problems and I am trying to get custody of my children from her, I need to call her psychologist and psychiatrist to testify her conditions in court.


 


And for the school records she responded:


I object as to relevance.


 


She has been going to school for many years and is due to graduate in a few months. I need her school information to show the court what she has been studying and how she is dragging her graduation date to after the divorce is final.


 


My question:


Can she object to the information I have requested? If not, how can I force her to give me the information?


 


 

Expert:  Roger replied 1 year ago.
Well, she can object, BUT the objections may not be sustained. If the information requested is relevant to ANY issues in your case, you should be entitled to the information.

If she will not produce the information voluntarily, then the only thing you can do is file a motion to compel production of documents with the court and let the judge decide whether or not to require the information to be produced.

USUALLY, a court will order the production of any relevant information.

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  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
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  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
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  • Ely

    Counselor at Law

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    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    8085
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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    LawTalk

    Attorney and Counselor at Law

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    27+ years legal experience. I remain current in Family Law through regular continuing education.
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    FiveStarLaw

    Lawyer

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    6336
    25 years of experience helping people like you.
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    Dimitry K., Esq.

    Attorney

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    5987
    I provide family and divorce law advice to my clients in my firm.
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    Tina

    Lawyer

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    JD, 15 years legal experience including family law
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    Brandon M.

    Family Law Attorney

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    Attorney experienced in all aspects of family law
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    Thoreau (T-USA)

    Lawyer

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    Attorney
 
 
 
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