## Facts

- Gail Cutting (wife) and Jack Cutting (husband) divorced after eight years of marriage.
- When the parties married, Jack already had about $7,000 in his employer’s Reynolds Metals Company Savings and Retirement Plan (the retirement plan), which Jack claimed as separate property.
- During the marriage, community earnings and other marital contributions were added to the same retirement-plan account, commingling separate and community funds.
- During the marriage, Jack withdrew about $13,000 from the retirement plan.
- By the time of divorce, the prorated value of the retirement plan was about $44,000.
- In partitioning the retirement plan, the trial court first deducted Jack’s $7,000 premarital amount as separate property and then divided the remaining balance between the spouses.
- Gail appealed, arguing that because Jack withdrew more than $7,000 during the marriage from a commingled account, Louisiana law treated those withdrawals as coming first from Jack’s separate funds, leaving the remaining plan balance as community property to be divided equally.
- Jack argued the $7,000 premarital amount remained identifiable and should be returned to him as separate property before any division of the remaining plan balance.

## Issues

1. When separate and community funds are commingled in a retirement-plan account and the account experiences withdrawals during the marriage, must the spouse claiming a separate portion show that portion still exists, or are withdrawals presumed to have depleted the separate portion first—making the remaining balance community?

## Decision

- The appellate court found the trial court erred by deducting Jack’s $7,000 premarital amount from the retirement-plan balance before dividing the plan.
- The court applied the presumption that withdrawals from a commingled account are attributed first to the separate-property portion.
- Because Jack withdrew approximately $13,000 during the marriage—more than his $7,000 premarital amount—the court treated Jack’s separate contribution as having been withdrawn during the marriage.
- The remaining balance of the retirement plan was therefore treated as community property subject to equal division, and the matter was sent back for repartition consistent with that treatment.

## Legal Principles

- Property in a spouse’s possession during the community is presumed community; a spouse claiming a separate interest bears the burden of proving it.
- When separate and community funds are commingled in a single account, a spouse may recover a separate interest only if the separate portion can be identified under the governing presumptions and evidence in the record.
- In a commingled account with withdrawals during the marriage, withdrawals are presumed to be taken first from the separate-property portion; absent proof to the contrary, a claimed separate portion may be treated as depleted if withdrawals exceed that portion.
- Funds remaining after depletion of the separate portion are treated as community and divided equally upon partition.

## Conclusion

Cutting held that where a spouse entered the marriage with separate retirement funds but later commingled those funds with community contributions and made withdrawals exceeding the premarital amount, the withdrawals were presumed to have exhausted the separate portion first; the remaining retirement-plan balance was therefore community property to be divided equally.


Cutting v. Cutting, 625 So. 2d 1112 (1993)