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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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