Failure to Trace the Allegedly Separate Funds Used for the Purchase of Property During the Marriage Allows the Court to Treat the Property as Marital

The Second Department found a lot of mistakes in the division of property and the support awards made by Supreme Court.  The discussion of each category of mistake is substantive enough to be instructive.  With respect to an improperly awarded separate property credit, the court explained that a party’s failure to trace the source of the funds for a purchase made during the marriage allows the court to treat the property as marital:

“Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” … . Here, BSH was formed and the building was acquired during the marriage, and the plaintiff failed to meet his burden of tracing the use of claimed separate funds to establish that they were used for the purchase of his portion of the property’s acquisition costs … . Marital property is to be viewed broadly, while separate property is to be viewed narrowly … . Where, as here, a party fails to trace sources of money claimed to be separate property, a court may treat it as marital property… . Hymowitz v Hymowitz, 2014 NY Slip Op 05306, 2nd Dept 7-16-14