§8.10 Community Expenses After Separation Paid With Separate Property

As a general rule, you should order reimbursement out of the community estate to a spouse who, after separation, uses earnings or other separate funds to pay preexisting community obligations. [Marriage of Epstein (1979) 24 C3d 76, 83-84, superseded by statute on another ground.] You have jurisdiction to order reimbursement in cases you consider appropriate for debts paid after separation but before trial. [FC §2626.] These reimbursements from the community are sometimes called "Epstein credits."

Do not order reimbursement, however, if payment was made under circumstances in which it would have been unreasonable to expect reimbursement, such as when [Marriage of Epstein, supra, 24 C3d at 84-85]:

• There was an agreement between the parties that the payment would not be reimbursed;
• The paying spouse truly intended the payment to be a gift; or
• The payment was made on account of a debt for the acquisition or preservation of an asset the paying spouse was using, and the amount paid was not substantially in excess of the value of the use.

Likewise, reimbursement should not be ordered when the payment on account of a preexisting community obligation constituted in reality a discharge of the paying spouse's duty to support the other spouse or a dependent child of the parties. [Marriage of Epstein, supra.]