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This Manual considers one of the most common property division issues in the modern divorce case: the tracing of marital and separate funds through a commingled bank or investment account. All dual-classification jurisdictions, under both community property law and equitable distribution law, agree that property acquired in exchange for separate property remains separate.
The problem of tracing separate funds through a joint bank account consists of two distinct parts. The first part involves proving that separate property came into the account. Because this part requires the court to determine the source of various deposits, it is a general exercise in multiple source tracing. Id. Assume, for instance, that the proceeds from selling separate stock are placed into a general marital checking account, along with both parties' paychecks. The party seeking to trace the separate funds must prove the amount of separate and marital funds deposited into the account so that the court knows the percentage of the account which was separate property.
The second part of the problem involves proving that separate funds flowed out of the commingled account at a particular point in time. In the above example, for instance, assume that the presence of separate funds in the account is proven. Assume further that the account was completely liquidated and the proceeds used for two purposes: to pay a marital income tax bill and to purchase a new boat. To trace the separate funds, the owner of those funds must prove that they were used to purchase the boat and not to pay taxes. Because the court is determining the destination to which the separate funds flowed, this part of the problem is an exercise in multiple destination tracing.
National Legal Research Group, Inc.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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