Divorce Your Spouse, Not Your Assets
It is important to note that “equitable” does not mean “equal”, but not every attorney understand the difference. Divorce is one of the most complicated fields of law where legal concepts collide with hotly contested, highly charged emotional issues. Attorneys become involved in a dissolution of marriage when the relationship is completely broken down and the parties find themselves enmeshed in a battle over the distribution of assets.
One of the biggest topics parties deal with at the time of dissolution of marriage is equitable distribution, which is a concept where the parties to a divorce divide the marital assets between themselves based upon their respective shares, rights and contribution to the same.
Of course, the parties have their own theories as to the distribution of assets and their entitlements, which is why attorneys are required to synthesize the issues down to a reasonable agreement that falls within the ambit of equitable distribution law.
Real Property Assets
Real property is often the centerpiece of the most hotly contested distribution of assets issues. Liquid assets, personal property such as motor vehicles and collections such as coins, stamps and guns also evoke conflicts between divorcing spouses.
By and large, real estate and, in some cases, self-employed individuals who have their own businesses, find themselves in a tug-of-war over who owns what and in what percentage.
In the case of real property, the first question to ask is when was the property purchased. This is a good starting point. However, it is not fully determinative as to who is entitled to the property – it only begins the inquiry.
Assets Prior to Marriage
If the property was purchased prior to marriage, there is a presumption that it is not marital property. However, the inquiry does not stop there. Beyond that, the question is: how and by whom was the property paid for and maintained after the parties got married? Were marital assets used to “carry “the property? If so, how much of the marital assets were used and for what purpose?
It is often the case where the party that purchased the property has subsequently used marital assets to pay for the monthly mortgage, taxes, utilities, maintenance and other expenses associated with the property during the course of time that the parties were married. If that is the case, the Courts will divide the property between the parties based on each parties’ respective contribution.
Property that was purchased after the parties were married is subject to the same standard inquiry. If property was purchased after the marriage, the presumption is that it is marital property. The court will examine how much marital property was utilized to pay for the property as well as the mortgage, taxes, insurance, utilities, maintenance and upkeep. If marital property was used completely for these purposes, the entire property will be divided equitably.
The typical circumstance is that the husband purchased property prior to marriage. The wife is not working, but instead staying home taking care of the children. He then uses his income (that he commingles in an account with his wife) to pay for the taxes, mortgage, utilities, insurance and upkeep of the property. When the parties divorce, the husband claims the property is his. The wife claims that the husband used marital property to pay for the “carry “of the property and that she is due her share since she left the work force to take care of the children. This is where attorneys step in to set expectations and advise their clients as to their respective rights and remedies.
In the above example, even though the husband may have purchased the property prior to marriage, his income – which was commingled in an account with his wife that was used for marital expenses – is also being used for the property. Because of this, the courts will identify any marital funds used for the “carry” of that property as marital property and, therefore, subject the property itself to equitable distribution based upon how much marital property over the years was used for that purpose.
The resolution to such a circumstance is that the husband will either need to buy the wife out of her share or he will need to sell the property and divide the net proceeds with her pursuant to their respective equitable shares.
Moving Forward with Your Divorce
If you are divorcing or considering a divorce, you should consult with and retain an attorney who is experienced in how assets are divided between spouses at the time of a dissolution of marriage. Make sure your interests are protected before proceeding with a divorce so that your rights and remedies may be best explained to you and your assets and your interests therein may be best protected.
Know that we’re in your corner every step of the way. For more information about equitable division of property Contact Kaufman, Nichols & Kaufman today at (801) 752-0499 to speak with our Ogden division of marital assets attorneys and learn what we can do to help you and protect your rights and interests.