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Tag: during marriage

Can a divorced spouse claim rights to a previous primary residence?

Can a divorced spouse claim rights to a previous primary residence?

A court can, in exceptional circumstances, award a spouse some or all of your premarital and separate property that is clearly not a marital asset. In the jurisdiction where I practice family law (Utah), the rule in caselaw is:

Dunn v. Dunn, 802 P.2d 1314 (Utah Ct.App. 1990):

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. Burt v. Burt, 799 P.2d 1166, 1168 (Utah Ct.App.1990) (separate property, in this case inherited property, includes “its appreciated value” during the marriage). Exceptions to this general rule include whether the property has been commingled, whether the other spouse has by his or her efforts augmented, maintained, or protected the separate property, and whether the distribution achieves a fair, just, and equitable result. Id.; Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

Elman v. Elman, 245 P.3d 176 (Utah Ct.App. 2002):

In distributing property in divorce proceedings, trial courts are first required to properly categorize the parties’ property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236,¶ 24, 9 P.3d 171. Generally, trial courts are also 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).

6¶ 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, 802 P.2d at 1320)).

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

https://www.quora.com/Can-a-divorced-spouse-claim-rights-to-a-previous-primary-residence/answer/Eric-Johnson-311

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Can a divorced spouse claim rights to a premarital primary residence?

Can a divorced spouse claim rights to a premarital primary residence?

A court can, in exceptional circumstances, award a spouse some or all of your premarital and separate property that is clearly not a marital asset. In the jurisdiction where I practice family law (Utah), the rule in caselaw is:

Dunn v. Dunn, 802 P.2d 1314 (Utah Ct.App. 1990):

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. Burt v. Burt, 799 P.2d 1166, 1168 (Utah Ct.App.1990) (separate property, in this case inherited property, includes “its appreciated value” during the marriage). Exceptions to this general rule include whether the property has been commingled, whether the other spouse has by his or her efforts augmented, maintained, or protected the separate property, and whether the distribution achieves a fair, just, and equitable result. Id.; Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

Elman v. Elman, 245 P.3d 176 (Utah Ct.App. 2002):

In distributing property in divorce proceedings, trial courts are first required to properly categorize the parties’ property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236,¶ 24, 9 P.3d 171. Generally, trial courts are also 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).

6¶ 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, 802 P.2d at 1320)).

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

https://www.quora.com/Can-a-divorced-spouse-claim-rights-to-a-previous-primary-residence/answer/Eric-Johnson-311

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How is it possible that people go bankrupt during divorce in the USA? Isn’t it a 50/50 split?

How is it possible that people go bankrupt during divorce in the USA? Isn’t it a 50/50 split?

It’s not “the divorce” that causes people to go bankrupt, it’s the financial strain that a divorce case either causes or exacerbates.

Here are the top three reasons why divorce and bankruptcy so often go hand in hand:

  • People can literally go bankrupt by incurring debt for legal fees. Contested divorces can easily cost $50,000 and only go up and up from there. Few people have that much discretionary spending money, so they go into debt to finance their divorce case and then find themselves unable to pay the creditors, so they file for bankruptcy.

Many people are insolvent or near-insolvent before they or their spouses file for divorce, and so:

  • some people don’t file for bankruptcy because they don’t want their family to suffer the effects of bankruptcy, but if their spouses file for divorce and break up the family, then the reason/motivation to put off filing for bankruptcy no longer exists.
  • for other people the financial support from their spouses are the only thing that keeps bankruptcy at bay. Once their spouses are out of the financial picture, they can’t put off bankruptcy any longer.

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

https://www.quora.com/How-is-it-possible-that-people-go-bankrupt-during-divorce-in-the-USA-Isnt-it-a-50-50-split/answer/Eric-Johnson-311

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