Family Law

Family Law News Issue 1, 2020, Volume 42, No. 1

Wrangling Reimbursements

Justin O’Connell

Justin M. O’Connell is a partner at Cavassa O’Connell, located in Monterey, California, where his practice includes family law and civil litigation. Mr. O’Connell is a Certified Family Law Specialist, served as a Commissioner on the California State Bar Family Law Advisory Commission from 2012 to 2015, and is currently the Legislation Chair of the California Lawyers Association Family Law Executive Committee (FLEXCOM). He has been the professor of Property Law at the Monterey College of Law since 2007, and a member of the Alternative Dispute Resolution Executive Committee for the Monterey County Superior Court since 2013.

In the hustle and bustle of practice, sometimes fundamentals can be applied overbroadly to simplify complex issues. Family Code section 2640 can be one of those overbroadly-applied fundamentals. It is well-known to all family law attorneys and judges, but it is open to misapplication. A lawyer might tell a client that her reimbursement claims are limited under section 2640 out of habit, without delving into which reimbursements are actually addressed by section 2640. At times, the trial court might need clarification that section 2640 does not actually say what opposing counsel says it does. Caselaw routinely instructs that when interpreting a statute, one should first read the statute. That, and a little historical context, can go a long way.

Section 2640 (through its predecessor Civil Code section 4800.2) was designed to prevent what the Legislature deemed to be inequitable loss of separate property investments in the division of the community estate. However, section 2640 applies only to the circumstances that it addresses — specifically, a contribution of separate funds to the acquisition of a community asset or the other party’s separate property asset (the subdivision (c) reimbursement regarding separate property assets was added in 2004). Section 2640 expressly creates an automatic, baseline right of reimbursement but goes no further. The statute does not:

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