Tracing: It's Not Just for Pre-schoolers (or, How Can I Keep My Stuff?!?)

As I discussed in an earlier post, during a divorce there may be both marital and non-marital property to be divided.  Non-marital property may be property acquired before the marriage, or during the marriage by a gift or an inheritance.  It can also be property that can be traced back to one of those types of property.

Tracing is a legal term of art to describe the process of tracking assets after they have been converted to another asset or commingled.  In a divorce case, if you are claiming that property is non-marital, the burden is on you to prove it.
 This proof must be pretty specific in order to overcome the court's presumption that all property in the marriage is marital.

An example of this might be where you inherit all of your Aunt Gertrude's jewelry from her estate.  Unfortunately, Aunt Gertrude had terrible taste so you decide to sell all of the jewelry to a pawn broker.  You then take the money, deposit it into your checking account and the next day you purchase a foosball table.  You could make a claim that the foosball table is non-marital because you could trace it back to Aunt Gertrude's jewelry.  The best way would be if you could produce the receipt for the foosball table, which coincides in time with the deposit into the bank account.  The ban records would detail the deposit which would match up with the pawn shop receipt where you sold the jewelry.  You would establish that you received the jewelry from your aunt's estate with the court documents from the probate case.  This is obviously a pretty simplistic example with ideal conditions of proof, but you get the idea.

The more common situation where this becomes important and much more valuable than a foosball table is when dealing with the marital residence.  This is especially common in second marriages or divorces of marriages that occur later in life where both parties have houses coming into the marriage.  One or both spouses may sell the houses and apply the money to the purchase of another home or invest in the other spouse's home.  In this field as in other types of tracing, the rules can become very complex and proof difficult to uncover.  It may be necessary to retain expert witnesses to appraise the property others well versed in accounting and sophisticated financial transactions.  If you have other questions, contact us at the Alford Law Office.

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