Divorce Property Issues
Answers From The Expert
Divorce property issues can be confusing because it makes a
difference whether you live in a community property or equitable
distribution state. Arizona, California, Idaho, Louisiana,
Nevada, New Mexico, Texas, Washington, and Wisconsin are considered
community property states, where all assets and debts acquired during
the marriage are generally subject to a 50/50 split.
In an equitable distribution state, assets and debts are divided in an
equitable fashion, taking into consideration the length of the
marriage, the income capacity of each spouse,
custody of the
children, and other factors. The following questions address some of
the issues that come up when dividing assets during a divorce:
Topic: Who gets the wedding rings?
Robin's Question: Do I have to give my wedding ring back?
Brette's Answer: Engagement rings are considered separate
property since it was a gift given to you before marriage. Wedding rings are
probably also considered separate property, although I'm not aware of any case
law about this. In most cases, the engagement ring is the item of most
value. » Return to top
How do I prove ownership of
the dog?
Sara's Question: My husband adopted a dog for me during our last year of
marriage - my dog is only licensed under me with the town and vet. He is going
after joint custody - wants weekend visits. My children and I have always been
responsible for the dogs care - what do I need to prove sole ownership?
Brette's Answer: It sounds like there is a good argument that the dog
was a gift from him to you. That's one way to approach this. Another is
definitely the impact it would have on the children to have the dog split its
time. And you could put together evidence about who has always cared for the dog
and get your vet to testify if necessary. Can
I give my Harley to my brother before I get divorced?
Pat's Question: If divorce proceeding have not started and we are
not legally separated, can I give my Harley to my brother as a gift?
Brette's Answer: You can, but you have to understand that it
might be added back in as a marital asset when you do divorce. » Return to top
Are gifts considered
separate or marital property?
Janet's Question: When we were "happily" married, my
parents gave my husband gifts such as some tools, and an air compressor. Going
through the division of property, I feel he should not be able to take the tools
that my parents gave him. My mom (my dad has since passed) says it was the
intention that he use them for our house. His lawyer states he can take it
because it was a gift. Please advise.
Brette's Answer: I understand how you feel about this, but the
law is quite clear. Gifts are separate property. Whatever was given to him by
your parents is his to take and do with as he wishes. I know it's hard to do,
but at some point you have to be able to tell yourself they are just material
possessions and there are lots of things in your life more deserving of your
energy and attention. Let it go. » Return to top
Do I have to repay him for
everything he spent during our marriage?
Reiko's Question: My attorney filed the divorce last week and
mailed the papers to my husband. He claims that he wasn't served properly, so
now he is going to file the divorce himself and have papers served on me. Did my
attorney do things incorrectly? Also my husband is saying that he is going to
have me reimburse all the private school tuition for my daughter that he paid,
all the cost of the vacations we took, plus the legal fees he paid when my
daughter's father and I went through the custody arrangement. They will all add
up to about 50K and I don't work. Can he do this?
Brette's Answer: I feel like I say this all the time when I
answer questions, but it bears repeating. Do not listen to your husband. First
of all, if you have a question about whether service was legal, call your
attorney. He or she arranged it and will know if it was completed.
As far as your husband's ridiculous list of things he is going to
win in the divorce, stop listening to him. He's full of it. Talk to
your attorney. Listen to your attorney. Your husband wants to scare
you and control you. Don't let him. » Return to top
Can
my husband get half of the house my Dad gave me?
Carolyn's Question: My husband and I have been
separated for 20 years. My father let me live in a house he
owned, and signed it over to me as a gift a few years before he
died. Would my husband be able to get half of my house?
Brette's Answer: Gifts are separate property and are not subject
to division in divorce. » Return to top
Topic: Does it matter whose name is
on the title?
Jeannie's Question: My husband and I have both talked
about divorce, but the discussion usually takes a turn towards him saying,
"This is my house, this is my car, this is...because it has my name on
it". Does it matter whose name is on the title when the property is split
in a divorce? Since the car is in his name, would I have to technically
"walk away" rather than drive? Brette's Answer: If those items were purchased during the course of the
marriage, they are marital property and must be divided in the divorce. Anything
that is marital property belongs to you as much as him at this point. You should
consult an attorney to talk about your rights in your specific state. » Return
to top
Will the bank account
I had before we got married be split?
Kimberly's Question: My husband and I have been married 3 years.
Is he entitled to any money that has been deposited into a savings
account that I have had since before we were married? My husband is not named as
a beneficiary on my savings account and has not contributed to it at all.
Brette's Answer: The money that was in the account before
marriage is your separate property. Anything you added to it during marriage is
marital property and will be considered in creating a property settlement.
This doesn't mean he will get it, but it does mean it is considered to be part
of the pot that must be divided. Property settlements look at the big picture
and include all assets and debts. Do
I have to tell his lawyer about my personal bank account?
Donna's Question: My husband and I are contemplating separation
or possibly divorce. I opened a bank account without his knowledge, and have
been putting some money in it each week so I have funds in case I have to be on
my own. If it comes to us divorcing, can his lawyer research and find out about
it?
Brette's Answer: You are going to have to disclose the bank
account in your financial affidavit. Everyone in a divorce must provide complete
financial disclosure to the other party and to the court. Failure to reveal the
information could get you into serious trouble. That doesn't mean you won't be
able to keep the money however, and it certainly doesn't mean you can't use that
money right now to pay your bills.
Can I make him repay the
money he took from my account?
Tami's Question: Before leaving, my husband he took
all the money from my checking account by writing checks and forging my name,
which caused a lot of checks to bounce. The checking account was in my name
only, and now I have bad credit and have to repay this money. Can I somehow get
him to pay this in the divorce settlement?
Brette's Answer: Yes. That money is marital
property and must be accounted for in the divorce settlement. Put together a
good accounting of what he took and how much it cost you in fees. Also detail
some information about how it has affected your credit rating. Get an attorney.
» Return to top
Do I have a right
to access his account to help support the kids?
Angie's Question: I have been separated from my husband for 6
months, and he hasn't paid any child support for our children. Since we are
still legally married, do I have the right to access his account to help with
the support of our children? The account is only in his name.
Brette's Answer: You can't access an account that is only in his
name without a court order. You should go to family court and seek child and
spousal support. What am I entitled
to if he was a co-signer on his father's accounts?
Andrea's Question: My husband of 20 years has decided to divorce
me. Three years ago, he had his name put on his aging father's accounts. There
are money market accounts, cd's, saving accounts, and checking accounts, all of
which he is a co-account holder. When he told me he was going to divorce me, he
took his name off of all his shared accounts with his father. What if any legal
rights do I have to those accounts.
Brette's Answer: It will depend on what the intent was. If he
was put on the accounts for convenience, so he could do banking for his father,
and not as an owner, then you may have no right to it. You need to get an
attorney who can help you with this. Are
finances automatically frozen when the divorce is filed?
Becky's Question: If I file on line for divorce, will this freeze
our finances?
Brette's Answer: Bank accounts are only frozen at your request,
or by court order. » Return to top
Can I sell community
assets to make ends meet?
Clara's Question: If the court entered a temporary restraining
order to protect assets during the divorce, can the wife sell community assets
to assist with care of children and life expenses during the divorce if she has
no income of her own?
Brette's Answer: You would need to get permission from the court
to do that if the order covers the assets you want to sell. You ought to be
asking for child and spousal support so that isn't necessary.
Topic: Property division in a
short marriage.
Catherine's Question: After 9 months of marriage, I can not deal with my husband, who has ended up
being a total control monster. I resigned from my job when we got engaged to help take care of the boys. I have taken all my
assets and merged everything with his. I still own my own home that my son and I
lived in before the marriage, as well as my car. What are my rights?
Brette's Answer: As for your marriage, you can get out
relatively whole. All items that were owned by you prior to the marriage are
yours. Items acquired during the marriage will need to be divided. How it is
divided depends on what type of state you live in - community property or
equitable distribution. In a community property state the presumption is that
everything is split 50/50. In an equitable distribution state it is divided in a
way that is fair. Debts are divided along with assets. You should
see an attorney immediately and find out what steps to take to protect
yourself. » Return to top
Topic: Property division in a
long marriage.
Marilyn's Question: After 24 years and four children, my husband
has decided that he wants a divorce. We are in the process of mediation and, are
stuck on two issues, his Pension and alimony. I was a stay- at- home mom for 16
1/2 years of our marriage, and put my career aside to raise our children. He
doesn't feel that I need alimony or any of his pension, because he says he has
to live too. I don't want to take away what he needs to survive, but I feel that
after 24 years of marriage, I am entitled to at least these things. What are my
rights?
Brette's Answer: Didn't your mediator require that you each talk
to an attorney? This is normally a requirement of mediation, so that both
parties have an independent attorney who can fill them in on their rights and
state law requirements. If you have not already talked to an attorney, I would
strongly recommend you do so now. It sounds as though you most definitely
entitled to alimony or an equivalent property settlement and a portion of the
pension. Your husband should also talk to an attorney who will explain to him
why you would be entitled to this. Do not sign or agree to anything until you
talk to an attorney. While mediation is a terrific option, there are some
situations where having an attorney who can file some papers in court can really
show your spouse you are serious and help to resolve things. » Return
to top
Does everything have
to be split 50/50?
Question: In a situation where wife and husband are in a complete
agreement in every detail of divorce, how amicable and uncomplicated is the so
called "amicable divorce"? Also, if one party wants keep only 20% of
the family wealth, is this legally possible?
Brette's Answer: If both people agree on everything, you can
file a settlement agreement which becomes the terms of the divorce, or you can
do it on an uncontested basis. It's simple and fairly quick. If by family wealth
you mean marital assets, you can agree to anything, however be aware that the
court must approve it. If it seems unfair and there is no reasonable
explanation, the court could reject it. » Return to top
Topic: Do I have to accept his offer?
Carolyn's Question: Should I just walk away after
20 years with nothing but $100.00 (that is what my husband is offering)? Brette's Answer: Your husband is not a judge and
has no authority to decide what your financial settlement should be when your
marriage ends. No one walks away with nothing, particularly not a woman who has
been married for 20 years. Call your local bar association and ask for a
referral to an experienced matrimonial attorney. Call and make an appointment
for a free consultation and find out what kind of settlement or judgment would
be recommended in your case. Mediation is another option, but before you go to
mediation you need to talk to an attorney who can suggest a reasonable outcome
in your case. » Return to top
Topic: What if we can't reach an
agreement?
Donna's Question: What is considered when both
parties can't come to an agreement on who gets what? Say for instance if we both
want a particular item out of the house, what is considered when deciding who
gets it?
Brette's Answer: To be honest with you, a lot of
judges don't want to get involved in dividing individual items. They don't have
the time and it is very difficult to do. I don't know where you're at in your
divorce process, but what is likely to happen is the court will urge you to go
to mediation to resolve this. If that doesn't work, it's likely you would have a
pre-trial conference with the judge or judge's law clerk, or matrimonial
officer, who would really put the screws to your lawyers to get this worked out.
It's quite rare that this kind of issue goes to trial. And if it does, usually
the couple is able to agree on almost everything and there are only a few
disputed items. In that case, the judge is going to look at the balance sheet to
see what your total take away assets and debts are, find out who uses the item
and for what, where it came from, who cared for it, and what it's worth. It's
really in your best interest to try to resolve this on your own. You don't want
to spend $200 an hour for your attorney to resolve who is keeping a $50 vase.
Good luck!
» Return to top
Topic: What can I take from the house if
I move out?
Diana's Question: Can I move things out of the
house like TV's or furniture before the divorce is final. I have
moved out but want to get some large items out now.
Brette's Answer: Whether you can remove items from the house
depends on where your divorce is at. If everything has been agreed upon, or the
judge has told you what is being ordered, but the paperwork is not complete, it
is reasonable to go ahead and take the items that are yours.
If property division is still in dispute, you can take items, but should be
aware their value will either be subtracted from your final property share, or
may have to be given back should the court decide certain items should go to
your spouse. You want to be sure to avoid conflict over taking these items - you
don't want to get into a screaming match with your spouse that could turn
violent. » Return to top
What should I do if
he's taking stuff from the house?
Etelle's Question: My husband left me and plans to get half
of the home value and furnishings. He has been removing items from the home, and
is also removing tools which he acquired during the marriage. What should I do?
Brette's Answer: Items purchased during marriage are
marital property. Take photos and make lists of all the contents
of the home. This will provide proof of what he has taken. Also, make a
note on your calendar for the day you saw him leave with them. Report this to
your attorney, so that the items can be itemized and a value assigned. The
amount will be subtracted from his share of the marital property. » Return
to top
Can he keep my stuff
until everything is settled?
Pam's Question: After we separated, I went back to our apartment
to pick up mine and the baby's things. He had the locks changed and he told me
the I can't get my things until our divorce is settled. Is that right?
Brette's Answer: No, he's not right. You really need to get a lawyer if
you can afford one. If your divorce papers have already been filed, you can go
to the next appearance and tell the judge what is happening. If that is not
anytime soon, you can file an emergency motion to ask for help. Another option
is to call the police, although that doesn't always work out. You might try
having a friend or relative go and tell your husband to give you your and the
baby's things and that might work. » Return to top
What if he threatens to
throw my stuff out?
Natalie's Question: I left my husband at the end of December and
he told me today that I have 30 days to get my belongings out or he will throw
them away. Can he do this?
Brette's Answer: Well he can, but he would face repercussions
once the case went to trial. That is willful dissipation of marital assets and
will count against him. It would likely be easier if you went and got your stuff
and got an attorney as soon as possible. » Return to top
How do I get my personal
belongings back?
Lynette's Question: My husband of 88 days has moved out. Not only
did he move out, but he took about $8,000 worth of my furniture and electronics
with him. WE have absolutely nothing together. He moved in with me with a duffle
bag. How can I prosecute him for stealing from me, and ultimately get back my
items? They are very sentimental to me as my late husband who died 2 years ago
left these for my children.
Brette's Answer: When you go to court, you simply tell the court
he took your pre-marital property. He has no right to it and will have to return
it or be in contempt of court. » Return to top
How do I get my
personal possessions out of the house?
Brenda's Question: Everything is in my husbands name. I
"ran" out of the house, leaving him everything (the house furniture,
washer/dryer, etc). I do not want anything from the house except my
personal belongings and my daughters "bedroom". I do not want to
deal with him, but how do I get the rest of my things?
Brette's Answer: If you feel it is safe, you can go back to the
house when he's not there and take what you need. Or you can have your attorneys
arrange a hand off of the property. If he won't agree, you'll need to go to
court to get an order disposing of the property. » Return
to top
Topic: Can I make him move my
belongings?
Renee's Question: My husband and I have been married for 12
years, and separated for six. I moved back to my home state because I couldn't
afford to stay where we were, and everything I had in is storage and has been
for 6 years. We want to process an uncontested dissolution of marriage, but I
would like to stipulate that he help me move my belongings from storage. What do
you feel would be reasonable monetarily to ask him to contribute to that cause?
All I want are my belongings back before I sign the papers. Everything that we
had in the way of furnishings and vehicles belonged to me before we married and
those are the very same things in storage. Thank you for any advice you might be
willing to share with me. Brette's Answer: Why don't you just tell him that you'll sign
the papers only if he loads up a U-haul truck with your stuff and drives it out
to you? Or that he pay to have movers move them? Tell him you'll sign them on
the spot once your stuff is in your driveway. Whether or not a court would
actually order him to pay to move your stuff seems iffy, especially if you're
more financially stable than he is. Good luck with this. » Return
to top
Topic: How are autos split in divorce?
Dee's Question: My husband has filed for divorce. I need to know
if he can legally get my car which is in my name and I am currently paying on.
Also, can he get my older car which is in my name and is paid for?
Brette's Answer: If your vehicles are marital property, they
will be divided in the divorce. This does not mean he will get them, just that
they must be considered in the property division. If you owned them prior to
marriage, they are not marital property.
What
can I do if the car is in his name?
Jeanette's Question: We bought a home under his name 3 years ago,
and he signed for my car that I drive and pay for. Can he report the car stolen
when I leave?
Brette's Answer: If the car is in his name, he is the legal
owner. You need to find a way to work out an agreement with him. You might
consider going to mediation if you can't do this on your own. You are entitled
to some value back from the equity of the home you contributed to. Depending on
the value of the car, it might be a fair trade for you to keep the car and him
to keep the house. If he agrees to this trade, make sure that he signs the
title over to you. Do I have to give back
the keys if he keeps the vehicle?
Jennifer's Question: My husband is being awarded the truck, and
the loan for the truck, in our divorce. He is insisting I give him back my copy
of the truck key and the remote since they are for the truck. Can the judge
order me to give him the key/remote? He has threatened to take the money he owes
me and have the truck re-keyed and then only pay me the balance left over
between what he owes me and what re-keying the truck will cost. Can he do
this?
Brette's Answer: Why on earth would you want to keep a key and
remote for a vehicle that is not going to be yours? There's no reason to keep
it. Just give it to him. If you don't, yes, he can certainly take you back to
court and the judge can certainly order that the cost of a replacement be taken
out of your property division, not to mention the fact that you could be ordered
to pay court costs. Stop making this so difficult and just hand the keys over. » Return to top
Am
I entitled to part of his bonus from work?
Hilary's Question: My husband received a bonus upon switching
firms, which was prior to my filing divorce. Am I entitled to this money?
Brette's Answer: All marital assets will be divided in the
divorce. It doesn't mean you automatically get half of that bonus, but the bonus
is added into the pool of all marital assets that are divided.
Topic: Severance pay and divorce
Lori's Question: I was let go from my job and received a
severance package where I will receive a full paycheck twice a month for 6
months. If I proceed with the divorce, is my husband entitled to half of my
severance package? What about the overtime that he works and side jobs? Am I
entitled to that.
Brette's Answer: You and your husband can reach any agreement
you feel is fair about your property settlement. You should consider seeing a
mediator who can help you reach an agreement together. If you go to court any
money earned during the course of the marriage is considered a marital asset and
can be divided.
» Return to top
Topic: Negotiating Stocks During Divorce Settlements
Theresa's Question: I have a large sum of money in
stocks. Is there a way I can get out of giving him half of my stock?
It was all acquired during the marriage. Brette's Answer: You can reach a settlement with
any terms that the two of you can agree on. If he agrees to let you keep
it, perhaps in exchange for other assets, you have no problem. I would
suggest trying mediation before going to court if you're unable to reach an
agreement. » Return to top
Topic: Dividing Stock Options After Divorce
Sheryl's Question: I was divorced three years
ago. Per our divorce decree, he was awarded one half of the vested stock
options as of the date of the divorce. He has not taken his stock options out
and the company stock has doubled. Does he get the split options as well? Brette's Answer: You should consult your attorney.
If he was to get half the *value* he is entitled only to the value as of the
date in the decree. If the stock was to be transferred to him, whatever has
happened to it since is his.
» Return to top
Topic: Are Personal Injury Awards
Considered Separate Property
Elizabeth's Question: My husband and I
are separating. He sued a company for falling into a hole on their
property. Am I entitled to any of that money? Brette's
Answer: This type of settlement or award is considered
separate property and is not considered to be part of the marital
property to be divided in a divorce. You should talk to an attorney
about your financial situation and how your property would be
divided. » Return to top
What if a personal injury award
was used to pay the mortgage? Elizabeth's Question: I
had received some funds from in injury claim. We paid that towards
mortgage payout. Can I retrieve that before we split the assets? Brette's
Answer: It sounds like you took a separate asset and
converted it to a marital asset. You should consult an attorney who
can consider your entire situation and give you personal advice.
Can I be compensated for
helping pay his child support? Barbara's Question: During
our marriage, I helped my husband make the child support payments
from his previous marriage. Shouldn't the amount that was paid
be deducted from his share of the equity we've built? He wants to
sell the house and leave me with nothing.
Brette's Answer: The child support payments your
husband made will have no impact on your property settlement. Technically the
responsibility was his, not yours. » Return
to top
Topic: Divorce Asset Search
Diane's Question: How do I find out if
my husband has been "stashing" money in a hidden account
prior to leaving? We were struggling financially and now he seems to
have plenty of money even paying 1/2 our debt and rent elsewhere. Brette's Answer:
This would be something you would be able to obtain information
about during the discovery phase of a divorce proceeding, or when
you complete sworn financial affidavits. You also could try asking
him, or going to mediation and discussing it there. » Return
to top
What should I do
about property he leaves behind? Carol's Question: In
the divorce, I was required to sell the house. I have given my ex
several chances to get what he wanted from the house, and he said
that he did. There are still some cars left on the property, and I
want to get rid of them before I move. I have told him, but he has
made no effort to get them. How can I protect myself if he
gets mad at me for selling or junking these cars? Brette's
Answer: You could send him a certified letter giving him a
date to remove them by or you will have them removed. Then you will
have proof that you gave him adequate notice.
What happens if one spouse dies before
the divorce is finalized? Donna's Question: What
happens to assets that I owned prior to a 4 year marriage if I were
to die after divorce papers had been filed, but before property
division and divorce decree? Brette's Answer:
If you are not divorced, you are still married and assets are
divided in that way. If you have a will, the estate is distributed
according to the will. If you do not have a will, it is distributed
according to state intestacy laws. » Return
to top
Am I entitled to part of
the tax refund if we aren't divorced yet? Paulione's Question: My
husband is going to get his tax refund back in a few
days. The taxes were filed on March 31 and we did not
separate until April 3. Am I entitled to half? Brette's
Answer: If it was filed as joint married, then it belongs
to both of you. It has to be accounted for in the divorce
settlement.
Related Articles:
Divorce Settlement Considerations
Dividing Retirement Assets
Also see:
More questions and answers
Ask the Legal
Expert a question
Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
For more information about Brette, see www.BretteSember.com.
This column provides general information about
the various aspects of divorce. It is not intended to take
the place of legal counsel and should not be considered personal legal advice.
For specific recommendations concerning your
situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim
any liability from any claim arising from any information contained
in this column. This column is not a substitute for legal advice.
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