Areas of Practice
If it was obtained during the marriage with funds earned during the marriage, it is marital property, and will probably be divided equally, regardless of who names it is in. Again, how much will the fight cost you in legal fees if you are successful? How does that compare to the value of what you are fighting for. To fight based on principle, you better be very wealthy, and even then, you have to ask yourself, “is it really worth it?”
News Flash: New Law will permit the Court to consider domestic violence when distributing assets and debts!
1. What kinds of property are at issue in a divorce?
All property of every type is first viewed as to whether or not each item is marital or separate property. All property is considered marital property unless a party can prove it to be separate.
2. What is separate property?
To be separate property, it had to be owned prior to the marriage and no marital resources having been put into it after the marriage, or it was purchased with funds held prior to marriage and maintained separately, or was a gift to just that spouse. Sometimes a piece of property can have both a separate and marital elements. For example, a house one spouse bought before marriage, and then after marriage the mortgage continued to be paid with funds earned after marriage or it had capital improvements done to it during the marriage with marital funds. You would have to prove you owned the house before the marriage, how much money you had put into it before the marriage, the value at the time of marriage and the value today, to prove a separate property component and obtain a credit for it. If no marital funds were put into after marriage, you need to produce proof of that as well. The down payment on house if used from funds you can prove you had prior to marriage or as being a gift to just you. Stocks that you owned before marriage, will remain separate if the only increase in value was passive, and you did not seek investment advice from your spouse. The portion and value of a retirement benefit which existed up to the date of marriage and the portion that accrued after the divorce was commenced. These are but a few examples.
3. What is marital property?
Everything that neither party can prove is separate property.
4. What about my personal property? Is that separate or marital?
It could be either. Most personal items are usually viewed as the property of that spouse, however, in the event it is an item of great value, it will be subject to division if you cannot prove it to be separate property. For example: expensive jewelry, boats, cars, furniture, furs, and so on. But you should always be mindful if the value is truly worth the litigation or not.
5. Does it matter whose name the property is held in?
No, it does not. As long as it is in either spouse’s name, it is marital if not proved to be separate. If it is in someone else’s name, but was bought with money from either spouse, it can also be subjected to distribution by bringing a constructive trust action against the other person, or offsets in distribution due to dissipation of marital assets.