D’Eufemia v. D’Eufemia, NO. 2012-CA-002101-MR AND NO. 2012-CA-002141 (Ky. App. 2014)
Party Claiming Property Acquired During Marriage is Non-Marital Bears the Burden of Proof

Rendered: June 27, 2014
Not To Be Published
Opinion Affirming in Part, Reversing in Part, and Remanding

There is nothing to add here substantively speaking.  My previous blog post dated June 12, 2014 provided citations to cases in both Kentucky and Ohio fleshing out the rule of law concerning the evidentiary burden of proving non-marital amounts in retirement accounts.  This is but another case to add to your string citation in Kentucky.  Though D’Eufemia concerns a PNC Investment Account funded in part with non-marital inherited funds, versus a 401(k)-type retirement plan containing pre-marital salary contributions, the rule of law is directly on point (see pages 2-6 of the Opinion).

The D’Eufemia Court was faced with the task of paving yet again the well-traveled road.  You know the drill, KRS 403.190(1) provides that “the court shall assign each spouse's property to him...”. Kentucky courts interpret KRS 403.190(3) as creating a presumption that property acquired by either spouse after the marriage and before the decree is marital property.  This presumption may be overcome by showing that the property at issue was acquired in a method enumerated in KRS 403.190(2). 

In short (you're welcome), the Appeals Court in D’Eufemia relied upon Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004), a Supreme Court of Kentucky case that extensively addressed the classification and division of property in divorce.  With respect to tracing as it applies to the determination of whether property, or some portion of it, is marital or non-marital, the Court of Appeals deferred to the Sexton Court, which explained:

“Tracing” is defined as “[t]he process of tracking property's ownership or characteristics from the time of its origin to the present.” . . . . The concept of tracing is judicially created and arises from KRS 403.190(3)'s presumption that all property acquired after the marriage is marital property unless shown to come within one of KRS 403.190(2)'s exceptions. A party claiming that property, or an interest therein, acquired during the marriage is nonmarital bears the burden of proof.

Sexton, 125 S.W.3d at 266 (footnotes omitted).


Adopt the above citation from Sexton as your spring board, cut and paste from D’Eufemia (inserting KRS 403.190(2)(e), relating to passive growth, in the place of KRS 403.190 (2)(a), relating to inheritances), and you have already written your pre-trial memorandum if you are representing the alternate payee (non-employee spouse) of a defined contribution plan with untraced pre-marital contributions and/or passive growth thereon.  If you represent the plan participant (employee spouse), before the pens even hit the paper, make sure to read my previous post on how to meet your evidentiary burden.