Am I entitled to half of savings?

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Am I entitled to half of savings?

I have been transferring money to my current wife’s account as she pays our bills and a debt from my ex is blocking me from being put on the account. I always put a memo in the transfer as savings, if we divorce, could I get at least half of our savings even though my name isn’t on the acct?

Asked on April 26, 2012 under Family Law, Arizona

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If you live in a community property state, community property is property acquired during marriage.  Community property includes income during marriage.  Each spouse has a one half interest in the community property.

Separate property is property acquired before marriage or after the marriage ends.  Separate property includes income before marriage or after the marriage ends.  A spouse has no claim to the other spouse's separate property.

Your income during marriage which you are transferring to your wife's account is community property.  When funds are comingled (the account includes separate property and community property), tracing (determining the source of funds) is used to determine whether the asset is community property or separate property.  Those memos that you are attaching would be evidence that the account includes community property.  Also, debts incurred during marriage are community property.  Payment of community property debts would also support your argument that the funds you have transferred to your wife's account are community property.  If the entire account is deemed to be community property, then you would have a claim for one half.  If only a portion of the account is deemed to be community property, you would have a claim for half of that portion.   When funds are comingled, there is a presumption that the entire amount is community property.  That presumption is rebuttable and through tracing the source of the funds, it may be shown that only part of the account is community property.  The character of the source (community or separate property) determines the character of the asset (community or separate property).

If you don't live in a community property state, other rules may be applicable.


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