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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 27664
Experience:  Attorney with experience in family law.
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Divorce looming in coming weeks. When we married I had

Customer Question

Divorce looming in coming weeks. When we married I had investment account that was mostly made up of inheritance from parents deaths before we met. After being married a year I inherited $100k from an uncle and used it for down payment on a house we still own
Also went in 50/50 with a friend to buy/build a vacation rental and I basically wiped out my $300k in stock market holdings to pay for the construction and land.
Today I have no independent portfolio. Just 401ks from various companies. Wife also has 491ks but she's also got abSchwab acct that has $150k and a Roth IRA she had before we married
Question: is there consideration for fact that I spent all my investment $ on the second house? Does she keep all the Schwab and Roth $ for herself?
Submitted: 7 months ago.
Category: Family Law
Expert:  Lucy, Esq. replied 7 months ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear about your situation.

California law allows a spouse to give a gift of separate property to a spouse, turning it into community property. However, that gift must be accompanied by an "express declaration." If you did not sign something stating that you intended to give your wife a gift of half your inheritance, that money remains your separate property and you're entitled to get it back. Cal. Fam. Code, Section 852. The same is true of the vacation rental if that money came from your investment account - but in that situation, if you didn't add your wife's name to the property, she doesn't really have any claim to it in the first place. Property purchased using separate property remains separate property under Cal. Fam. Code, Section 770.

She's entitled to keep whatever money was in her retirement accounts before the marriage, however, contributions made into those accounts during the marriage are considered community property, and you have a right to half that money. She also has a right to half of whatever is in your 401(k)s, but you can agree that she just make an equalizing payment to you from one of her accounts if there's more in those. If the money in your 401(k)s is more or less equal to what she's added to her retirement accounts since the marriage, you can also agree to just keep your own accounts.

It's important that you are 100% satisfied with my courtesy and professionalism. Thank you.

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