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Abood v. Abood9/2/2005
rately because I believe this court should hold that there is a rebuttable presumption that transmutation of a separately titled house into marital property occurs when the house is used for a substantial period of time as the marital residence. We implied such a result in Chotiner v. Chotiner, where we gave as an example of "an act or acts which demonstrate [a transmutative] intent" the act of the parties in using "the premises as their personal residence." Further, immediately after we gave the personal residence example in Chotiner, we stated: "Similarly, placing separate property in joint ownership is rebuttable evidence that the owner intended the property to be marital." The upshot of these statements is that the use of a house as a marital residence presumptively shows that the owner-spouse intends to donate it to the marital estate, in much the same way as placing property in joint ownership presumptively shows that the owner-spouse intends that the property so placed will be marital in character. I think that we should recognize this link in the present case.
Most common law presumptions are created because proof of the basic fact establishes the existence of the presumed fact to a sufficiently high degree of probability that it is fair and expedient to assume the existence of the presumed fact:
Most presumptions have come into existence primarily because the judges have believed that proof of fact B renders the inference of the existence of fact A so probable that it is sensible and timesaving to assume the truth of fact A until the adversary disproves it.
The connection between using a separately titled house as a marital residence for a substantial period of time, the basic fact, and transmutation of the house into marital property, the presumed fact, is very close. We recognized this in Chotiner in the language which I quoted above. Further, our decisions subsequent to Chotiner involving marital home transmutation claims have consistently found that transmutation took place. Transmutation can be either the product of the intent of the owner-spouse or of the use of marital funds and efforts to maintain the property in question. Often, an owner-spouse will intend transmutation when a house is used for a marital residence. But even where this is not the case, marital residences are almost always maintained (including making mortgage payments) with marital funds and efforts. Creating a presumption recognizing this connection will tend to streamline divorce proceedings by eliminating much wasted effort by counsel and the courts. Further, the existence of such a presumption will demonstrate that it is only rarely that a marital residence is not transmuted and thus highlight the need to take special steps (such as pre-nuptial agreements or maintenance of the residence with separate property) in cases where the owner-spouse wishes to avoid transmutation.
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