Hello,My name is XXXXX XXXXX I am a family law attorney. My colleague Alex asked me to step in to weigh in on your question.First off, understand that property division
is essentially universal in divorces in all 50 states, barring Louisiana and Native American tribal entities.Now, let's get to the meat of your question. "if my husband inherited some money and then put it in a Schwab account, and then a few months later added marital assets to this account, does all of the money then become marital assets? On the other hand, if he adds inherited assets to a marital asset account, does all of this account then become marital assets?"Believe it or not, there is a special doctrine in place just for your type of situation - it's called comingling. Now to understand the reasoning, first you have to know the difference between community property and separate property. Now I know you probably already know this, but just bear with me, ok:Separate property and debt is property that is generally:
1. Owned before marriage by one spouse; or
2. Acquired by gift or will or similar legal way by spouse during marriage; or
3. Declared as such by prenup or postup; or
4. Traceable property purchased by one spouse only; or
Recovery for personal injury
, but not medical expenses or loss of earning capacity.
Separate property and debt is awarded to the party which had claim to it in accordance with the rules above.
Community Property and debt is everything else, including but not limited to:
1. Income from BOTH parties; or
2. Declared as such by prenup and postup; or
3. Gift from one spouse to another; or
4; All titled and non-titled property gathered during marriage.
So now we know, that if he INHERITED money, it's his separate property. Now whether he put the the inherited money into a joint account (community property) or instead put some community property funds into an account which held inheritance money, it does not matter since they both have the same effect under the law: COMINGLING.Comingling happens when a spouse accidentally or intentionally mixes separate property and community property together, as he would have done here. Then the WHOLE account becomes COMMUNITY, which means you're allowed 1/2 of it. He CAN petition the Court to recognize a split, and ask for his amount of separate funds to be given to him only, but the burden is on him BY CLEAR AND CONVINCING EVIDENCE to show that he put separate property into the account. This means he's have to show the inheritance amount, and the paperwork from that money trail to the bank account, and that he submitted the same exact amount into that account. IF he can show that BY CLEAR AND CONVINCING EVIDENCE, he can take out his inheritance and split the rest (marital). If he can't, ALL will be split in half.He would have to do this by a MOTION TO ESTABLISH SEPARATE PROPERTY or MOTION FOR CLARIFICATION if this is in regards XXXXX XXXXX orders in place before the hearing on the merits, or if this will be heard at trial, he'd have to present evidence then and there. Remember, he has to prove this by CLEAR and CONVINCING EVIDENCE, not just the regular "preponderance of the evidence" litmus test usually used in family law cases.
Also, if this is AFTER trial, he'd have to do a post-Judgment MOTION FOR MODIFICATION, but virtually no Judge will listen to him here, since he didn't bring it at trial, and would likely dismiss it for "judicial economy" by its own motion.Best of luck in your matter. I'm here if you need any more clarification or follow up info.
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Edited by Eli on 1/25/2010 at 7:33 PM EST