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Tag: division of marital property

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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The Difference Between IRAs

In divorce actions, be sure to distinguish between the different tax treatment of Roth and traditional IRAs. Investopedia.com stated it clearly and concisely: “The traditional IRA allows you to contribute a portion of pre-tax dollars. That reduces your taxable income for the year while setting aside the money for retirement. The taxes will be due as you withdraw the money. The Roth IRA allows you to contribute post-tax dollars. There are no immediate tax savings, but once you retire, the amount you paid in and the money it earns are tax-free.”

https://www.investopedia.com/retirement/roth-vs-traditional-ira-which-is-right-for-you/

This means that a dollar in a traditional IRA is not worth the same as a dollar in a Roth IRA. Bear the tax consequences of funds in traditional IRAs and in Roth IRAs when you divide marital assets.

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

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