Cutting v. Cutting

625 So. 2d 1112 (1993)

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Cutting v. Cutting

Louisiana Court of Appeal
625 So. 2d 1112 (1993)

  • Written by Liz Nakamura, JD

Facts

Gail Cutting (plaintiff) and Jack Cutting (defendant) divorced after eight years of marriage. At the time of the marriage, Jack had approximately $7,000 of separate funds in his Reynolds Metals Company Savings and Retirement Plan (the retirement plan). The prorated value of the retirement plan on the date of the divorce was approximately $44,000, composed of commingled separate and community funds. During the marriage, Jack withdrew approximately $13,000 from the retirement plan. In the divorce judgment, the trial court deducted Jack’s $7,000 of separate property from the retirement plan before dividing the remaining balance between Gail and Jack. Gail appealed, arguing that the $7,000 should not have been deducted prior to division because, under Louisiana law, withdrawals from a commingled account were presumed to first come from separate property. Therefore, because Jack withdrew $13,000 from the retirement plan during the marriage, Jack had already withdrawn his $7,000 of separate property, and the remaining funds in the retirement plan were entirely community property. Jack countered, arguing that deducting the $7,000 prior to distribution was appropriate because the funds were clearly traceable to a separate source.

Rule of Law

Issue

Holding and Reasoning (Knoll, J.)

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