2012: How Do You Ask For Reimbursements For Payments Of Community Property Obligations After Separation Made With Separate Property Funds In A San Diego Divorce Or Legal Separation?

In an divorce or legal separation, the date of separation can be considered for the termination of the community. In San Diego Superior Court, for every legal separation or divorce, a date of separation must be listed on the petition and response. This date of separation is used to determine the character of the asset [community; separate; quasi community] and the debts as well. The date of separation can be critically important in the final resolution. In many divorce or legal separation cases in San Diego Superior Court, the date of judgment can be many months [and sometimes many years] from the date of separation. During this time, separate property funds of either party may be used to pay community property expenses such as credit cards or mortgages or other debts. At the time of the judgment, either spouse may ask for a reimbursement for one half of the separate property payment to the community property expense as each party owes one half of the community property debt. This should not be confused with tracing separate property contributions during the marriage.

One possible strategy for reimbursement is to reduce the amount of community property being charged to the spouse who paid the debt by the full amount of the credit before any equalizing payment is calculated. In this way, the spouse who made the payments will receive a reimbursement of fifty percent. Alternatively, the payments made after date of separation and before trial or judgment which were to the community can be calculated separately and then equalized. In any event, the reimbursement is for one half since both spouses owe one half and this can become confusing.

There are instances in which a reimbursement credit may not be ordered. If the payment was made under circumstances in which it would be unreasonable for the spouse making the payment to expect any reimbursement and this is a fact based analysis. If the parties agreed that there would be no reimbursement, then there is no reimbursement. If the paying spouse intended the payment to be a gift and thus was not seeking reimbursement then there would be none. If the payment is in the nature of support of a spouse or dependent child, then a reimbursement credit could not be ordered. If the payment was made on the account of a debt for which the paying spouse was using the asset post separation {payment on car and exclusive use of car} then a reimbursement credit may not be ordered. In sum, these credits are discretionary to the Court.

If you have questions about whether you are entitled to a reimbursement for payments you made on community debt post separation with separate property funds, please feel free to contact us for a consultation.

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