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Tag: assets

If Your Husband Files for Divorce, Can He Ask You to Leave the House Immediately?

I can’t speak for the law in all jurisdictions, but I can tell you what the law is where I practice divorce law (Utah).

Can your spouse ask you to leave the house upon filing for divorce or upon announcing that he or she intends to file for divorce? Sure. Anyone can ask. Can your spouse force you out of the house? That’s a different question.

If the couple acquired their house while married, but unless they structured the purchase in a very unusual and very specific and clear way, so as to ensure that both spouses do not jointly own the property, property acquired by either spouse in his or her own name during the marriage is nevertheless considered marital property, with the exception of property that is acquired by a spouse by gift or by inheritance.

Most married couples by their house together, having it titled jointly in their collective names. If a spouse files for divorce and then turns to the other and says, “Get out of my house,” such a command or demand has no legally enforceable basis.

It gets a little trickier if you’re confronted with the situation when, say, a woman owns a house before she marries, and then after she marries, she and her husband move into her house together. If the husband does not contribute to the mortgage payment, or to the maintenance or improvement of the wife’s house, in the event of divorce she might very well have the legal authority to tell him to “get out of my house,” after all it is her house (the scenario would be no different if the husband owned the house before he married the wife, in case you were curious and unsure). The husband has not acquired any ownership interest in it merely by being married to the owner of the house.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://motherinlawmysteriesandconflicts.quora.com/If-your-husband-files-for-divorce-can-he-ask-you-to-leave-the-house-immediately-3

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Does an ex-spouse have claims to properties purchased during the marriage but name is not on deed, deed states married man and no mention of the property or distribution in the divorce?

I can answer this question in the context of the law of Utah, which is the jurisdiction where I am licensed to practice divorce and family law. To learn the answer to the question for another state, you would need to consult the law of that jurisdiction and/or consult with an attorney who is licensed in that state.

If your question is, “Do I have a claim to property my spouse purchased during the marriage but did not disclose the existence of during the divorce proceedings (meaning that I discovered its existence only after the decree of divorce was entered by the court)?”, then the answer is (in Utah):

Yes, you may have a claim. Now that means you have an argument for an award of some or all of (or a money judgment for some or all of the value of) that undisclosed property to you. You do not have an automatic right to any such award, but you may have a strong argument for it. If you want to pursue your claim, you should almost always pursue as soon as you possibly can. Delays in asserting and prosecuting a claim can weaken your claim.

Utah Rules of Civil Procedure, Rule 26.1 provides, in pertinent part:

(f) Sanctions. Failure to fully disclose all assets and income in the Financial Declaration and attachments may subject the non-disclosing party to sanctions under Rule 37 including an award of non-disclosed assets to the other party, attorney’s fees or other sanctions deemed appropriate by the court.

Note: separate property usually remains separate property in a divorce. Separate property has three (which is basically two) different forms in a marriage: 1) property one owned (and “property” in this sense includes money you owned) before marriage (premarital property) and 2) property purchased with separate property funds. Separate property also includes money or property you obtained during the marriage if you obtained it by gift from someone other than your spouse and it also includes money or property you inherited during the marriage. So if, while married, you inherited a house from your parent, that house would be your separate property. Now one can convert (the legal term is “transmute”) separate property into marital property (by transferring title from yourself to you and your spouse jointly, or by spending money you inherited by adding a room to the marital home, or by spending your inheritance on a fancy cruise for you and our spouse—you get the idea), but if the separate property is not transmuted, it usually (usually) remains your separate property, although Utah law permits a court to award separate property to the other spouse, if circumstances warrant it.

Elman v. Elman (245 P.3d 176, 2002 UT App 83 (Utah Court of Appeals 2002):

¶ 18 Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “‘extraordinary situations where equity so demands.’” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’” (quoting Dunn v. Dunn, 802 P.2d 1314 at 1320)).

And there are these authorities too:

“The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property.” Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990). Such separate property can, however, become part of the marital estate if (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it, or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse. (Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (citation omitted)).

Premarital property, gifts, and inheritances may be viewed as separate property, and in appropriate circumstances, equity will require that each party retain separate property brought to marriage; however, the rule is not invariable. Burke v. Burke, 733 P.2d 133 (Utah 1987).

A material misrepresentation or concealment of assets or financial condition as a result of which alimony or property awarded is less or more than otherwise would have been provided for is a proper ground for which the court may grant relief to the party who was offended by such misrepresentation or concealment, absent other equities such as laches or negligence…. However, before relief can be granted, it must be determined that the alleged misrepresentation or concealment constitutes conduct, such as fraud, as would basically afford the complaining party relief from the judgment. (Clissold v. Clissold, 30 Utah 2d 430, 519 P.2d 241, 242 (1974) (citations omitted), overruled in part on other grounds by, St. Pierre v. Edmonds, 645 P.2d 615, 619 n. 2 (Utah 1982); accord Boyce v. Boyce, 609 P.2d 928, 931 (Utah 1980) (noting that “[c]learly, a court should modify a prior decree when the interests of equity and fair dealing with the court and the opposing party so require”); Reid v. Reid, 245 Va. 409, 429 S.E.2d 208, 211 (1993) (ruling that “[o]nce the amount of spousal support is determined, the statutes and case law specifically limit the divorce court’s authority to retroactively modify that amount, absent fraud on the court ”) (emphasis added).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Why Don’t All Divorced Wives Get Half of Their Husbands’ Property?

Because divorce is not about a spouse (man or woman) getting “half of everything”.

Depending upon whether a state is a “community property” state or an “equitable distribution” state, here is how property is divided between spouses in a divorce:

A community-property state is state in which spouses hold property that is acquired during marriage (other than property acquired by one spouse by inheritance, devise, or gift) as community property. Otherwise stated, all property that is acquired during the marriage by either spouse (other than property acquired by one spouse by inheritance, devise, or gift) or by both spouses together is jointly and equally owned and will be presumed to be divided in divorce equally between the divorcing spouses. Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

An equitable distribution state seeks to divide property in divorce in a fair, but not necessarily equal, manner. An equitable property state court can divide property between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including (but not limited to) a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, the length of the marriage, whether the property was acquired before or after marriage, and whether the property acquired by one spouse by inheritance, devise, or gift. The court may take into account the relative earning capacity of the spouses and the fault of either spouse (See Black’s Law Dictionary, 11th ed.). Equitable distribution is applied in the non-community property states.

So, does a spouse “get half of everything” in divorce? Possibly, but not always, and now you know why.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Why don’t all divorced wives get half of their husbands’ property? – Husbands and wives – Quora

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Is it easier to get a divorce if you and your spouse have nothing shared?

Is it easier to get a divorce if you and your spouse have no debts, no shared property, and no children?

Typically, generally, usually, yes. In the overwhelming majority of cases. 

You identified three of the top four reasons, in my opinion, that divorces are acrimonious and bitterly fought over protracted and ruinously expensive periods of time (the fourth big reason is alimony). The fewer the reasons to fight, the faster, less expensively, less physically and emotionally burdensome, and easier the divorce process is. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-it-easier-to-get-a-divorce-if-you-and-your-spouse-have-no-debts-no-shared-property-and-no-children/answer/Eric-Johnson-311  

 

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Law from a legal assistant’s point of view, week 18: Financial Declarations and Initial Disclosures

Law from a legal assistant’s point of view, week 18: Financial Declarations and Initial Disclosures

By Quinton Lister, legal assistant

My minimal exposure to the legal profession as a legal assistant to a divorce attorney has given me the opportunity to learn about financial declarations and initial disclosures. These forms are necessary for any party going through the process of litigation for a divorce, and they are straightforward as to what they require.

The financial declaration is a statement of income, expenses, debts, assets, and financial accounts for each party to a divorce action.

One’s initial disclosures form identifies people with information relevant to the case, the potential witnesses, and documents and other physical evidence a party asserts supports his/her case.

Completing the financial declaration and initial disclosures forms completely and correctly, along with gathering all the necessary supporting documentation, is a time-consuming process. With rare exception, divorce litigants do not want to prepare these forms. I know this because anyone I have tried to help through this process always fails to complete the forms and/or complains about the work that needs to be done on these forms. I get it, but what the clients often don’t seem to get is that your financial declaration and initial disclosures are not optional. Court rule require both you and your spouse to fill them out, fill them out correctly, and fill them out fully. Failing to do so can result in the court penalizing you and/or making erroneous rulings based upon incorrect and/or incomplete forms.

I am not a lawyer and thus cannot give any legal advice, but as someone who has taken part in the process of helping clients prepare their financial declarations and initial disclosures, I can see that preparing these forms completely, accurately, and on time greatly benefits you and your lawyer, saving you both time and frustration, as well as sparing you grief, on the back end.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Financial Declaration (utcourts.gov)

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My spouse opens accounts in my name, forges my signature. How to stop it?

My spouse opens accounts in my name, steals checks, forges my signature. How do I get my spouse to stop?

Without telling me, my spouse opens store accounts in my name, steals my checks, forges my name on my checks and accounts. In our state, assets are divided 50/50 in a divorce, and that would be catastrophic financially for me. How do I get my spouse to stop?

This is a great question. The answer is not going to be very comforting.

Unless you are somehow able to prove to the court’s satisfaction that, in fact, your spouse opened accounts in your name without your knowledge or consent, if you cannot prove that your spouse forged your name on contracts or checks, then the poor judge can’t be expected to ignore the documents that show you—albeit falsely—have those accounts and debts and obligations. From the judge’s perspective, your spouse has very compelling evidence (even though but only you know it’s false and fraudulent). The judge needs proof that this evidence is fake before it can disregard that fake evidence.

Fortunately, it has been my experience that frequently a person in your position can often find the proverbial smoking gun that exposes your spouse’s fraud to the court’s knowledge. But if you believe you can prevail in a contest of “your word against mine,” you’re in for disappointment. Don’t leave it to chance.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Without-telling-me-my-spouse-opens-store-accounts-in-my-name-or-steals-forges-my-name-on-my-checks-In-our-state-assets-are-divided-50-50-in-a-divorce-and-that-would-be-catastrophic-financially-for-me-How-do-I-get-my/answer/Eric-Johnson-311

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What are ways divorcees reach a mutual agreement when splitting up their assets?

What are ways divorcees reach a mutual agreement when splitting up their assets?

What they often do (but shouldn’t): rationalize and justify their greed and pettiness in advancing their “arguments”* for why they should get what they want. This results in claims for obviously lopsided divisions of marital property and to false and fatuous claims that what is marital property is actually “my separate property” and “that was a gift from my parents to us, so now that we are divorcing, it’s mine.” Being greedy and petty in the division of marital assets is self-defeating because it often leads to wasting more time, effort, and money than the property is worth.

What they could—and usually should—do: 1) think like your divorce court judge will think and do what the law requires your judge to do, i.e., divide all marital property equally (meaning an equal division of the value of the property), unless there are clearly evident exceptional circumstances that equitably warrant an uneven division of marital property.

*the definition of the word “argument” is not what many people believe. An argument is not the same as a quarrel. An argument is “a reason or set of reasons given with the aim of persuading others that an action or idea is right or wrong.”

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-ways-divorcees-reach-a-mutual-agreement-when-splitting-up-their-assets/answer/Eric-Johnson-311?prompt_topic_bio=1

 

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What are ways divorcees reach a mutual agreement when splitting up their assets?

What are ways divorcees reach a mutual agreement when splitting up their assets?

What they often do (but shouldn’t): rationalize and justify their greed and pettiness in advancing their “arguments”* for why they should get what they want. This results in claims for obviously lopsided divisions of marital property and to false and fatuous claims that what is marital property is actually “my separate property” and “that was a gift from my parents to us, so now that we are divorcing, it’s mine.” Being greedy and petty in the division of marital assets is self-defeating because it often leads to wasting more time, effort, and money than the property is worth.

What they could—and usually should—do: 1) think like your divorce court judge will think and do what the law requires your judge to do, i.e., divide all marital property equally (meaning an equal division of the value of the property), unless there are clearly evident exceptional circumstances that equitably warrant an uneven division of marital property.

*the definition of the word “argument” is not what many people believe. An argument is not the same as a quarrel. An argument is “a reason or set of reasons given with the aim of persuading others that an action or idea is right or wrong.”

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-ways-divorcees-reach-a-mutual-agreement-when-splitting-up-their-assets/answer/Eric-Johnson-311?prompt_topic_bio=1

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How can I protect my assets before getting married without prenup?

How can I protect my assets before getting married without prenup? Short answer: One option (not a very good one, frankly, but about the best there is under the circumstances as you describe them in your question) is:

1) own no major/valuable property before you are married (in other words, your spouse would probably not seek (and the court would probably not award to your spouse any part of) a portion of things like your clothes and personal effects, so you could live in a house and drive a car you lease and thus have no such “big ticket” items that could be sold and the proceeds of sale awarded to your spouse in divorce;

2) save nothing in the bank or in investments and retirement accounts, so that there is nothing like in which your spouse could try to claim an interest; and

3) ensure that you do not earn more than your spouse does, so that your spouse cannot make an easy argument for alimony.

Your real question may be this instead: How can I prevent losing too much (being treated unfairly) financially in divorce? If that is your question, it is a very good and very common one. After all, most reasonable people would agree that what a couple acquires together during marriage is considered “their” property, “our” property, instead of “there’s yours and there’s mine”. For example: a couple marries and buys a house together in which they live for years. Sure, it may have been that one spouse worked full time while the other stayed home to take care of the kids and the house, but they are a team, partners (in both a legal sense and a practical sense).

Another example: Saving up for retirement. It is common for one spouse to be better able to pursue a career and advance in it (thus making more money for retirement) when the other spouse stays home with the children (at least while they are quite young) and keeps house. Both spouses understand that one hand washes the other. The decision to purchase the house and the decision to have one spouse be the primary breadwinner and the other the children’s primary caretaker was made together, for mutual benefit. The spouse with the full-time job knew in advance that he/she would be sharing the house and retirement funds with his/her spouse and worked for the money needed to fund these things. It is understood that these things are marital property that would be divided equally in the event of divorce. It makes sense. But there are other issues that are not so clear cut. Many people—mostly husbands, but a growing number of wives—have this sense that:

  1. a) “divorce should not result in my being financially exploited”;
  2. b) “divorce should not result in being robbed of what was mine before marriage and what I acquired for myself during marriage”;
  3. c) “I shouldn’t have to continue to support a spouse financially if I’ve done nothing to make divorce necessary; if my spouse wants out of the marriage and files for divorce, then he/she should do so with the understanding and expectation that with the end of the marriage comes the end of any and all of my obligations to support my spouse due to the fact that he/she is no longer my spouse”;
  4. d) spouses who: don’t carry their fair share of the weight during the marriage, who don’t do their best to contribute, and/or become financially dependent upon the other spouse as a result of being lazy (as opposed to spouses who are or become, due to disabilities beyond their control, financially dependent on the other spouse); and/or spouses who abuse the other spouse and/or children, commit adultery, or waste marital resources (i.e.,, refuse to uphold their marital responsibilities with impunity); and
  5. e) spouses who are moochers in divorce when they demand that the people to whom they are no longer married nevertheless keep supporting them financially. There is something inherently unfair in that concept.

In response to these questions and concerns the best answers for me personally are:

One, if I am truly worried that my marriage could end in divorce to a gold digger, the solution does not lie in trying to figure out a way to protect my assets but in not marrying the suspected gold digger.

Two, I did not marry to keep tabs on how much I have to lose in divorce. Yes, there are risks in trusting my spouse with my welfare (both physical and emotional), but the opportunity to enjoy a happy marriage is worth the risk to the right person.

Now please understand: I get that sometimes you can do everything right and marry someone who was great but who later changed and turned on you. That is sad, but not enough of a reason to avoid marriage, in my opinion. Well-rounded married people are generally much happier than well-rounded single people. Do not deny yourself the joys and blessings of marriage out of the fear of divorce. There is no meaning to success without the risk of and the fight against failure.

Three, there is no more reliable and cost-effective way to protect your assets in divorce than with some wise financial planning and a well-drafted prenuptial agreement.

Warning: even the most well-drafted prenuptial agreements are not iron-clad, but they are better than nothing (far better) if you are concerned about protecting yourself from being raped and pillaged financially in divorce.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Are prenuptial agreements used only to avoid divorce settlements?

Are prenuptial agreements used only to avoid divorce settlements?

Prenuptial agreements are used primarily to avoid the expense, the misery, and the waste of time divorce actions can (and usually do) cause by agreeing in advance what the separate property and debts of the parties is now (so that there will be no confusion or argument over ownership and liability after marriage), what property and earnings acquired during the marriage will be considered separate property (instead of automatically being marital property, as it would be in the absence of a prenuptial agreement) in the event of divorce or death.

I generally dislike prenuptial agreements between young, penniless couples who wed for the first (and, it is hoped, the last) time because a prenuptial agreement in such circumstances sends the wrong message, i.e., “I don’t have faith our marriage will last, so I have an exit plan in mind already!” But for people who are already divorced or widows/widowers, a prenuptial agreement is not only a good idea but may be necessary to ensure that your property goes to your chosen heirs and not in full or in part to your new spouse.

Depending on jurisdiction, prenuptial agreements can address and resolve in advance the issues of alimony and child custody and support. Some states allow a couple to address and resolve these issues contractually between themselves, other jurisdictions provide that a court has the ultimate discretion over the resolution of such issues, even if a prenuptial agreement provides differently from what the court rules.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Are-prenuptial-agreements-used-only-to-avoid-divorce-settlements/answer/Eric-Johnson-311

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What are some ways people who are getting divorced have hidden their assets?

What are some ways people who are getting divorced have hidden their assets?

I have answered a question similar to this one previously on Quora:

Hiding money or assets from a spouse in divorce is legally and morally wrong.

So is the topic of this kind of illegal behavior worth discussing, then? Absolutely. Because knowing how your spouse could hide money or assets from you is the first step in noticing or discovering whether your spouse is hiding money or assets from you.

There are many ways people can hide money and assets in preparing for and/or in the course of a divorce. Rather than take credit for all the ways people have devised for hiding money from their spouses, I will simply share with you the links I came across on this subject:

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-some-ways-people-who-are-getting-divorced-have-hidden-their-assets/answer/Eric-Johnson-311

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My bank account was subpeonaed. Will the bank share business account transactions or only personal account?

My bank account was subpeonaed. Will the bank share business account transactions or only personal account?

In Utah, where I practice law, here’s how the bank will respond to the subpoena (if the subpoena was properly issued and bank obeys the law and follows the court rules governing subpoenas):

  1. the bank will object to any part of the request if it believes there are grounds for objecting;
  2. if the bank sees no reason to object to some or part of the subpoena, then it will produce the documents that it has in its possession that are described in the subpoena, but the bank should not (and will not want to) produce any documents not requested.

So if the subpoena asked only for personal account documents, the bank should only produce those documents, no more, no less.

If the bank objects to some or part of the subpoena, or if you (or another party to the case) requests an order to protect some or all of the documentation subpoenaed from disclosure, the court may quash or modify the subpoena, or order compliance upon specified conditions. An order compelling compliance shall protect the person subject to or affected by the subpoena from significant expense or harm.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/The-family-court-subpoenaed-my-bank-Will-the-bank-share-business-account-transactions-or-only-personal-account

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