Burden of Proof for Retaining Separate Property Upon Divorce

In a blog post earlier this year, we discussed the importance of maintaining a paper trail in post judgment matters, as it relates to the collection of various expenses.

Similarly, documentation to support the burden of proof is a crucial issue for divorcing couples, who may just assume that—1. because they had an asset before they were married; 2. inherited an asset before or after they were married; and/or 3. received a monetary award in connection with a lawsuit—the asset/award is automatically theirs. However, it is not that simple!

“Who has the burden of proof? Is the burden on me or you with regard to maintaining separate property?”

The burden is on the individual claiming that an asset is separate property, because there is a presumption that anything acquired during a marriage is marital. Therefore, the individual asserting a separate property claim MUST produce the support to be successful.

The best way to go about providing evidence in that regard is with statements: bank statements, a closing statement (if it was a real estate transaction), and retirement account statements, to name a few. Keep a paper trail with the documents if assets were transferred, etc. Do not throw those documents out. Of course, the originals are always best, but in today’s day and age, if you are afraid of forgetting where you placed documents, you can certainly scan them into a computer or take pictures of them with your smartphone.

One of the biggest problems, and ultimately a very costly one, especially in long-term marriages, is that people do not keep their papers! The absence of a paper trail makes things more difficult, and it frustrates the titled spouse who is trying to prove a separate property claim.

Given the voluminous amount of paperwork involved, whether or not you are contemplating divorce, we advise you to keep records of all of your assets in case you need it someday. You should also do a prenuptial agreement, a postnuptial agreement, or a marital agreement to preserve your separate property, just to err on the side of caution.

Without documentation for your claim of separate property, an inheritance that you’ve received could ultimately end up in the hands of your soon-to-be ex-spouse.