| Question: |
I bought a house before marriage with my own money, and it remained titled in my name alone during the marriage. Now that we are getting divorced, does my spouse have a claim to the house? |
| Answer: |
Yes and No. Prior to answering this question it is necessary
to understand the concept of "Marital Property" and "Non-Marital Property".
Assets (and debts) that are classified as
"Marital Property" are subject to what is known
as "Equitable Distribution". Equitable
Distribution is the process by which Marital
Property is distributed between each spouse.
Non-Marital Property is not subject to Equitable
Distribution.
In this situation, only the
increase in value of the house from the date of
marriage to the date of separation is considered
"Marital Property" and subject to Equitable
Distribution, because the house remained titled
in the name of the individual who purchased it
prior to the marriage. An appraisal will be
needed to determine the home's value for
purposes of Equitable Distribution.
However,
if after the marriage the house was transferred
into the names of both spouses, then it is
considered a "gift" to the marriage, and the
entire value of the home is considered "Marital
Property" subject to Equitable Distribution. |
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| Question: |
In the last response,
you mentioned that classifying an asset (or
debt) as "Marital Property" is important in the
Equitable Distribution process. What is Marital
Property, and how is it different from
"Non-Marital Property"? |
| Answer: |
Marital Property is any asset acquired (or
debt incurred) by either spouse during the
marriage. It does not matter how the asset or
debt is titled. For example, a 401(k) account is
only titled in the name of one spouse, but all
contributions during the marriage are considered
Marital Property.
Similarly, a balance on a credit card in the
name of only one spouse that was incurred during
the marriage is considered a Marital Debt, and
as such can be considered in Equitable
Distribution.
There are exceptions to this rule. For example,
any inheritance or gift received by one spouse
during the marriage is not considered Marital
Property, unless that gift or inheritance is
used to purchase an asset in joint names, or
deposited in a jointly-titled account. Then the
gift or inheritance is considered as having been
"gifted" to the marriage and all of it is
considered Marital Property.
To further, complicate matters, even if the gift
or inheritance is placed into a account titled
only in the name of the recipient spouse, any
increase in value on the account between the
date of the gift or inheritance is considered
Marital Property. |
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| Question: |
My former
spouse/mother/father of my children has primary
physical custody of them, and I am paying child
support. However, every time I see my children
they are wearing old clothes and always seem to
be in need of school items or other
necessities. Can I ask for an accounting by the
custodial parent for the child support e or she
receives? |
| Answer: |
No. You have no right to ask the custodial
parent how he or she spends the child support
you pay. However, if you are being asked to
reimburse and/or contribute for medical expenses
over and above the $250 per child/per year
deductible then you are entitled to
documentation of the expense you are being asked
to pay, as well as proof that the custodial
parent paid the $250 deductible. |
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| Question: |
My spouse and I have
decided to separate and have agreed on how to
divide our assets. Can you represent both of us
in the divorce case? |
| Answer: |
No. Under the Rules of Professional
Responsibility and Code of Ethics, and attorney
may only represent one party in a divorce case.
Further, the lawyer can only give legal advice
to his or her client. It is extremely unwise to
represent yourself in a divorce proceeding. |
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| Question: |
A friend of mine who
went through a divorce told me she is getting
more child support/alimony/property than I am
getting. Why can't I get the same? |
| Answer: |
Many times in divorce/custody/child support
proceedings you will likely hear from relatives
and friends about their own experiences.
However, you must remember that every divorce
case is unique, and comparing any two cases is
like comparing apples to oranges. Even if you
have been through a divorce previously, your
current case will likely be much different than
the prior experience. |
