Characterization and Equitable Apportionment

When community and separate property are commingled, there may exist an issue as to whether the asset is separate, community, or mixed. There may also exist an issue as to whether there is a right to reimbursement relative to the separate or community estate. The determination of these issues is fact driven. Gray areas are often decided in the divorce courts in favor of the community. These issues are often determined based on which party has the "burden of proof." There are presumptions that favor the community estate and there are presumptions that favor the separate estate. Some presumptions may be overcome with evidence. Family law courts may be required to rule on characterization and apportionship issues relative to bank accounts, brokerage accounts, stock options, businesses, real estate, and many other assets.

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