A husband who apparently thought he would have little trouble keeping property he acquired with separate property out of the marital property division in his divorce was entirely disappointed by the trial court and the Court of Appeals in Riley v. Riley, unpublished, 23 VLW 1128 (3/10/09). Though the husband argued that the money to buy and build a waterfront lot and the building on it came from liquidation of real property he owned before marriage, his 401K, and a premarital insurance policy, the proof, it was held, just wasn’t there. Nor did he succeed in proving that the property was, at least to the extent he argued, partly separate. Though he said that his contribution to the purchase and the building from separate funds was such that the Brandenburg formula would give him 80% of the net proceeds at its sale, he did not meet his burden and refute the marital property presumption on any of these counts. The Court didn’t consider it proved that the separate funds he started this with were not commingled with marital money. The trial court wanted “third-party institutional proof” for this tracing, and so did the Court of Appeals. Sure the husband had had the 401K before marriage, but he didn’t show any paper to prove that he kept it separate after marriage by not contributing money or work to it. The trial court thought he had probably used some separate money to pay the builders, but it could not tell how much separate money was used, or even how much marital money was used. As to proceeds from the sale of his pre-marital house, that was, once again, not sufficient proof to tell, to the satisfaction of either court, what were the marital and the separate components of that.