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:
Does adultery affect the division of property?
Kathy's Question: Does the grounds of adultery usually affect the division of property? I can't prove my husband had any sexual contact, but can prove phone calls and a dinner date.
Brette's Answer: In some states, proof of "bad behavior" during marriage can affect the property division. See an attorney to discuss your state laws.
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 protect myself if everything is in his name?
Diane's Question: Everything is in my husband's name. How can I protect myself?
Brette's Answer: It's all marital property and will be divided but until that happens, open a bank account and credit cards in your own name. Get your credit report so you will know if you will qualify for loans or to rent property. Get an attorney.
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
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
Is property given as a gift considered joint property?
Kelly's Question: My husband and I own a piece of property that was a gift to us for our first Christmas. It is in his name only, but the two of us went to the closing. He is trying to claim it as an inheritance now because his Grandmother bought it for us. Can it be considered an inheritance if she never owned it?
Brette's Answer: If it was a gift to both of you, it is joint property. However, just going to the closing does not mean it was also a gift to you. You would need some evidence - a note, letter, etc or testimony from witnesses that it was intended as a gift to both of you. An inheritance only occurs when someone dies and leaves you property.
Is land that was paid for during the marriage community property?
Heidi's Question: My husband took a 401k loan out for a 20 acre piece of property about 8 months before we were married. The loan was around 240.00 dollars a month for about four years. We have been married for ten years now. We were also living together and engaged to be married at the time he took out the loan to purchase the raw property. Now that we are getting a divorce, he states that I am not entitled to any of that property because he borrowed his own money... My attorney says that doesn't matter - it was still a loan going towards property that we paid off together.. I am very curious to find out what your second opinion is.
Brette's Answer: This is a question that I've addressed a lot. Your attorney is right. You're entitled to a portion of the increase in value from payments during marriage and from any improvements you helped with or which were paid for during marriage. Good luck.
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
Is he entitled to any of the furniture I had before we got married?
Pauline's Question: I am in the middle of separating from my husband. I had some furniture that I had before I had met him! Do I have to split any of that with him or can I just take what is mine?
Brette's Answer: Furniture you owned prior to marriage is your separate property. Furniture acquired during marriage is marital property and must be divided. You may be able to talk this through yourselves and agree on who gets what.
He says he won't split any of the furnishings we got while married.
Mickey's Question: My husband and I are already divorced, and the home was his before marriage, but he will not split the furniture and furnishings that we acquired during our marriage. He only allowed me to come and get my personal belonging and told me that was all I was getting. My attorney is not moving on this, what can I do?
Brette's Answer: Tell your attorney that you want him to request that the personal property be distributed by the court. Good luck. » Return to top Do I have to give him half the furniture 5 years after our divorce?
Anne's Question: After being divorced for 5 years, my ex-husband has now decided that he wants half of the marital gifts/furniture we acquired during the marriage. He says he left it all with me because he didn't want to upset or disrupt the kids' lives by taking it but now that I am moving and getting re-married, he wants his half. Do I have to split the furniture etc. with him?
Brette's Answer: No, if your divorce decree does not require it.
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
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.
Should we split the savings and checking accounts?
Tina's Question: We are separated and we are going to use a paralegal. I wanted to find out if we should split our savings acct, checking acct and 401k. I am a housewife and he is the breadwinner. We have one child together. He doesn't want me to touch any account.
Brette's Answer: I strongly suggest that you go and talk to an attorney to find out what your rights are and what you would be entitled to in court. You don't need to hire the attorney to represent you, but one session in which you educate yourself about the law and how your case would be decided by a court would be very eye-opening for you. You're going to short-change yourself unless you get some legal advice.
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
Can I withdraw money from 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: No. The bank will not allow you to access it, but the court can divide those funds in the divorce if they are marital property. You should go to family court and seek child and spousal support.
Can I take a check and withdraw half the money from his account?
Kathy's Question: Can I forge a check from my husbands account to get 1/2 of the balance in the account before it all disappears from the account?
Brette's Answer: No, of course not. Check forging is illegal.
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. Is he entitled to any of the money that I'm managing for my mother?
Jen's Question: I am currently in the settlement process of my divorce. I have a savings account with mine and my brothers name on it. The money in the account is my mothers. My brother and I had to put it in our names because our mother has mental health issues. My ex is trying to claim half of the money in the savings account. The money in that account has nothing to do with him or myself for that matter. Can he get away with that?
Brette's Answer: That money would be considered a separate asset (a gift) or not an asset of yours at all since you are simply managing her funds.
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
What am I entitled to if he sells property before we get a divorce?
Jenn's Question: My husband has a business that he has said he will give to someone before he let me have part of it. What am I entitled to if he sales or signs it over to someone before we get a divorce?
Brette's Answer: It's a marital asset and he'll be held responsible for reimbursing you if he gives it away. It sounds like you should get an attorney.
Can I stop him from selling property before we divorce?
Rebecca's Question: We acquired land five years ago and paid 2500 down. The land is only in his name, but for the last 5 years I have made the payments. Can he sell or transfer the title prior to our divorce?
Brette's Answer: You have to start a divorce case so the court has jurisdiction, then you ask for an order preventing him from selling during the case.
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. Even if the court allows you to sell assets, the proceeds are considered a marital asset to be divided in the divorce. You ought to be asking for child and spousal support so that isn't necessary. » Return to top
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 all community property have to be listed?
Julie's Question: I am about to file for divorce and have been separated from my husband for 8 months. I bought a car last year and he says that he doesn't want the car. Do I still need to list it under "Community property" or can I just leave it out since he says he doesn't want it?
Brette's Answer: Everything acquired during marriage is community property and must be listed.
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
How would a livestock herd be divided in a divorce?
Jill's Question: My husband is filing for divorce and states that he will get our 125 head of livestock. He had around 50 head when we got married 6 years ago. The herd has grown a lot since then, and I have put a lot of hard work into it's growth over the years. How is livestock divided in a situation where some of them were separate property?
Brette's Answer: I'm no expert when it comes to livestock, but those acquired during marriage are marital property and will be divided. Those he owned before marriage were separate property but since you put work into them, you're entitled to a portion of their value. The question will be whether it makes sense to divide the herd or whether you should get some other asset (cash, securities) for your value instead. I think you should see an attorney who is experienced in this type of property.
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. Marital asset and debts will be divided by the court between the two of you. 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
What if he won't return my stuff like the divorce stipulated?
Debra's Question: My husband was physically abusive and I was forced to flee while he was at work, taking only what I could at the time. In the divorce it stipulates what items I can get from the house (mostly sentimental personal belongings). The trouble is he has outright said I cannot get my things. How do I get them? Is there a way to have a Police Officer go with me?
Brette's Answer: You could call the police, but I don't know for certain what their response would be. If they won't help you, you can file a petition for a violation with the court and just ask that a day and time be set up for you to go retrieve your items.
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 if it 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, and you can ask to keep them. If you owned them prior to marriage, they are not marital property. » Return to top
Can I get the vehicle my husband bought after we separated?
Diana's Question: I'm in the process of a divorce. My husband has a girlfriend and has already gotten a loan in his name to purchase a vehicle for her. If the vehicle is titled in his name (or his and her name or even just in her name), is there a chance I could get that vehicle in the divorce settlement or at least consider it one of his assets?
Brette's Answer: Not unless he used marital funds to buy it.
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. What can I do if he takes the car?
Brette's Answer: If the car is in his name, he is the legal owner. While the divorce is pending, you can ask for a temporary order giving you possession of the car, since anything bought during marriage is a marital asset. 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. » Return to top
Shouldn't I be compensated if he keeps the truck?
Pamela's Question: We purchased my husband's pick up truck in 2008 with our home equity line. Since he will be keeping the truck, my thinking is that I need to be compensated for it. He does not think this is fair. My point is why should I pay for him to have a fully paid for truck at the end of this when it is "his" truck. Am I missing something here? Brette's Answer: The thing you both need to understand is that all the assets and debts of your marriage are part of the marriage and must be divided fairly. When it's all totaled up, the truck goes into the total assets column and the balance on the loan goes in the total debt column. If he wants to keep the truck, there has to be a way to balance that out - either you get other assets in the same amount, or he assumes responsibility for a corresponding amount of debt. This is all about the big picture - you can't look at one item. You have to look at the entire balance sheet.
Is the car value determined on the date of separation or divorce?
Alexandra's Question: We live in a community property state and my spouse has a car which is community property. Whilst the divorce process is going on for several months, he says that the car will need a repair for several thousand dollars and this amount will be subtracted from the value. Is this fair - the car was fine at the time of separation and now he's claiming repair costs just to get its value down? Or should the car be valued as per separation date?
Brette's Answer: Assets are usually valued as of the date of separation. Good luck. » Return to top
What if he sells the business vehicle before we divorce?
KK's Question: My husband purchased a Medallion Yellow Taxi under only his name. He could get a $300,000 loan out of it, or he could sell and get all the cash; then it's value will be zero. How can I make sure that I get my fair share? Brette's Answer: If the medallion was purchased during marriage, it is a marital asset and its value goes into the pot of what is to be divided. If it is not a marital asset, you might still have some claim as to this taxi business's increase in value. If he sells the medallion and it is a marital asset, the proceeds of that sale still remain a marital asset and must be divided. I suggest you talk to an attorney who can sit down with you and explain all of your rights.
What if he won't sign over the car like we agreed?
Question: Before our split, we purchased a car with my ex's name being the primary and mine being the secondary on the loan. I got the car in our divorce, however both of our names were to remain on the car until it was paid off. Once the car was paid off, the bank sent the title to my ex because his name was the primary name on the loan. Now he says he made three payments on the car and he will not send me the title unless I pay him for those three payments! What can I do?
Brette's Answer: If the car was to be turned over to you once it was paid for, then that's what is supposed to happen. You can file a petition for a violation with the divorce court which will order him to turn it over or hold him in contempt. I'm not sure I understand how he made payments you were unaware of. The court could decide to order you to repay him for that since you will benefit once the title is turned over to you. » Return to top
Will he have a claim to my car if it's registered to someone else?
Rochelle's Question: I acquired a car last year, but it is not registered in my name as my brother-in-law agreed to stand surety for it. So the car is registered in his name. Can my husband lay claim to anything that is not legally registered in my name?
Brette's Answer: It depends. If you purchased the car, then it is an asset of yours. I'm not sure why you would have your relative take ownership other than in an attempt to defraud the court and your husband. If so, this is dangerous ground you are on and you should talk to an attorney.
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.
Is he entitled to royalties from my book?
Jeannette's Question: I have self published a couple of books. Now that I'm getting a divorce, my husband's want rights on my books. Is he entitled to any of this?
Brette's Answer: Intellectual property is marital property and the value of it will be included in the property that is to be divided. He may be entitled to a portion of future royalties. You need to talk to an attorney in your area. » Return to top
Am I entitled to any of his worker's comp settlement?
Ellen's Question: Am I entitled to half of a settlement for workman's comp for a head injury?
Brette's Answer: Probably not, but you should check with an attorney to determine what your state laws are.
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
Is he entitled to the settlement I received before we married?
Mandi's Question: If I received a large settlement from a case regarding my mom's death and a company paid me a certain amount of money when I sued them- does my husband have rights to this money at all? It was acquired before the marriage.
Brette's Answer: It sounds like the money is separate property, but you need to consult an attorney to be certain.
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. » Return to top
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.
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
Can I have his car towed away if the divorce isn't finalized yet?
Tammy's Question: My husband and I are not divorced yet but have gone through mediation and he has moved out our home. He has gone past the deadline he was given to pick up all of his belongings and left an old pickup truck in the backyard. Can I have it towed off of the property now?
Brette's Answer: If this is a deadline set voluntarily in mediation and not set by the court, then no. In general it's not reasonable to interfere with the other's property without notice and reasonable time to comply.
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. » Return to top
Can he come get stuff after the divorce has been finalized?
Sherry's Question: Two and one-half years ago, my spouse abandoned the house, leaving me seven months behind in all bills. Mother bought the house to prevent foreclosure. He was told to take everything he wanted and all that belonged to him. Our divorce was finalized two weeks ago. Now I receive a letter from a paralegal stating he wants items from the house, including the bed his stepson now sleeps in. Can he take these items after this long? I thought after the divorce was final, it was final.
Brette's Answer: It depends on how the divorce is worded. If it says all personal property has already been divided, then it has. He can always seek to go back to court over these items. It seems as if the simplest thing to do would be to reach some kind of compromise.
How is property divided if he gives his daughter power of attorney?
Donna's Question: My husband is considering a divorce. He made his daughter power of attorney about a year ago and is threatening that I will get nothing if he decides to divorce me. He signed the power of attorney l week before he was admitted to a mental facility, is it legal?
Brette's Answer: There is no requirement that you name your spouse as your power of attorney. The fact that he designated his daughter has nothing to do with how property will be distributed in the divorce. Marital property must be divided by the court. If he is unable to make decisions himself during the case, his daughter can do so for him. If you are inquiring as to his mental state, a person needs to be of sound mind to create a power of attorney. Being admitted to a mental facility does not necessarily mean you are unable to make rational decisions. » Return to top
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.
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. » Return to top
Will I owe taxes on property I receive in the divorce?
Rondolyn's Question: My husband is to sign over one of the cars we have into my name. Do I have to pay taxes on a car that is in his name that he signs over to me in the divorce?
Brette's Answer: No. Property transfers as part of a divorce are not taxable income.
Is a lump sum property settlement taxable?
Question: If I am getting a cash lump sum property settlement from a divorce, is it taxable? Instead of property, he is giving me a one time cash settlement which is stated in the divorce papers as a lump sum.
Brette's Answer: You should always consult with your attorney about the taxable nature of lump sum payments in divorce. The settlement has to be written carefully to distinguish between alimony and property 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.
Divorce Process / Children and Divorce/ Emotions and Divorce
Starting Over / Financial Survival / Relationships
Home / Divorce Guide / State Resources / Divorce FAQS
Divorce Books / Store / Survey / Contact / Chat / Links / Newsletter
|
