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Tag: 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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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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How do you change the name on a deed after a divorce?

In Utah (where I practice divorce and family law), there is more than one way to transfer title to the marital home (assuming the parties own a home), but the most common and conventional way is the same way title to real property is transferred between any two parties: by deed. If a couple jointly owns their home and it gets awarded to one spouse alone in the divorce, then the spouse who was not awarded the house prepares (or has prepared for him/her) a deed that transfers his/her interest in the real property to the spouse who was awarded the house in the divorce action. 

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

https://www.quora.com/How-do-you-change-the-name-on-a-deed-after-a-divorce/answer/Eric-Johnson-311  

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When are my ex’s things deemed abandoned?

I was awarded the house in the divorce. My ex’s things are still here and he/she won’t pick them up. When are they deemed abandoned? 

Utah Code § 67-4a-201 provides, in pertinent part that property is presumed abandoned if the property is unclaimed by the apparent owner “the earlier of three years after the owner first has a right to demand the property or the obligation to pay or distribute the property arises.” 

Utah Code § 67-4a-208 (Indication of apparent owner interest in property) provides, in pertinent part: 

(1) The period after which property is presumed abandoned is measured from the later of: 

(a) the date the property is presumed abandoned under this part; or 

(b) the latest indication of interest by the apparent owner in the property. 

(2) Under this chapter, an indication of an apparent owner’s interest in property includes: 

(a) a record communicated by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held; 

(b) an oral communication by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held, if the holder or the holder’s agent contemporaneously makes and preserves a record of the fact of the apparent owner’s communication; 

(c) presentment of a check or other instrument of payment of a dividend, interest payment, or other distribution, or evidence of receipt of a distribution made by electronic or similar means, with respect to an account, underlying security, or interest in a business association; 

(d) activity directed by an apparent owner in the account in which the property is held, including accessing the account or information concerning the account, or a direction by the apparent owner to increase, decrease, or otherwise change the amount or type of property held in the account; 

(e) a deposit into or withdrawal from an account at a banking organization or financial organization, including an automatic deposit or withdrawal previously authorized by the apparent owner other than an automatic reinvestment of dividends or interest; 

(f) any other action by the apparent owner which reasonably demonstrates to the holder that the apparent owner knows that the account exists; and 

(g) subject to Subsection (5), payment of a premium on an insurance policy. 

(3) An action by an agent or other representative of an apparent owner, other than the holder acting as the apparent owner’s agent, is presumed to be an action on behalf of the apparent owner. 

(4) A communication with an apparent owner by a person other than the holder or the holder’s representative is not an indication of interest in the property by the apparent owner unless a record of the communication evidences the apparent owner’s knowledge of a right to the property. 

(5) If the insured dies or the insured or beneficiary of an insurance policy otherwise becomes entitled to the proceeds before depletion of the cash surrender value of the policy by operation of an automatic premium loan provision or other nonforfeiture provision contained in the policy, the operation does not prevent the policy from maturing or terminating. 

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

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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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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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Can I kick my spouse out of the house without his/her consent?

Can I kick my spouse or our children out of the house or even off the property without their consent when it becomes clear that my spouse and I are headed for divorce?

Can I kick my spouse or our children out of the house or even off the property without their consent when it becomes clear that my spouse and I are headed for divorce? What about if my spouse is being abusive or making threats? What about if my spouse is a substance abuser and doing dangerous things?

Well, believe it or not, there is a statute in the Utah Code that treats this very subject: Utah Code § 30-2-10, entitled “Homestead rights — Custody of children”. And here is what it provides:

Neither the husband nor wife can remove the other or their children from the homestead without the consent of the other, unless the owner of the property shall in good faith provide another homestead suitable to the condition in life of the family; and if a husband or wife abandons his or her spouse, that spouse is entitled to the custody of the minor children, unless a court of competent jurisdiction shall otherwise direct.

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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Can a parent discipline a child by taking the child’s phone away?

Can a parent discipline a child by taking the child’s phone away?

Before researching this question, I thought the answer was obvious. It’s not. As a both a lawyer and a parent myself, I always believed that I had control over my minor children’s property, meaning I could, among other things, withhold use of a phone or a bike as a disciplinary measure. Now I’m not so sure. Here’s what I found. What do you think? (read this whole thing because if you don’t you’ll be fooled):

I found two cases (in Texas and Michigan) in which a parent was arrested and charged with theft of a phone. In the Texas case, a father was charged with theft, but the court found the father not guilty because there was insufficient evidence of theft. The mother of the child claimed the phone was hers, but the court could not determine ownership. In the Michigan case, a mother was charged with theft, but charges were dropped when it was discovered that the phone was not the property of the ex-husband/father, but that the minor daughter’s owned the phone.

From what I can tell from the cursory research I have conducted, I can confidently conclude: 1) courts and prosecutors generally don’t want to deal with these kinds of family disputes (good for them) and 2) these kinds of cases can turn out however the prosecutors and/or courts want, i.e., they can construe the same facts and the same law to reach the desired outcome either way. Otherwise stated, if a conviction for theft is wanted, it can be found “as a matter of law” that taking a child’s phone is theft, and if a conviction for theft is not wanted, it can be found “as a matter of law” (often times referring to the same statutes) that a parent taking the child’s phone away was not theft.

But is there a more definitive legal answer? Here’s what I found on that question:

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

And see:

5 Summ. Pa. Jur. 2d Family Law § 8:38 (2d ed.) | June 2020 Update

§ 8:38. Parent’s right to control of child’s property

A parent has no authority to sell and convey the interest of a minor child in real or personal property. Parents are also precluded from bargaining away the rights of their minor children.

But then you get cases like Kemp v. Kemp, 485 N.E.2d 663, 665 (Ind.Ct.App.1985):

Court necessarily grants to divorced parent some degree of control over child’s property in process of determining which parent acquires or retains custody of child upon dissolution of marriage.

Inherent in the concept of “child custody” is the right and obligation to care for, control, and maintain the child. It is a matter of common sense, then, that in the process of determining which parent acquires or retains custody of a child, a court necessarily grants to that parent some degree of control over the child’s property.

For example, no one would deny a “divorce” court’s jurisdiction when dissolving a marriage and disposing of marital property to order a husband to surrender to his former wife a motorcycle belonging to their sixteen-year-old child, now in the wife’s custody. An argument that the court in such a hypothetical has thereby “awarded property not owned by the parties” or “distributed assets in excess of the marital estate” misses the mark entirely. In fact, such a court has awarded nothing and distributed nothing. It has simply decided which parent should exercise the guidance and control over the minor’s life and property that inhere in the concept of parental custody.

Before and after the dissolution the motorcycle “belongs” to the child; the court has merely determined which party ultimately possesses what might be termed parental dominion over the property by virtue of having custody of its owner. Thus, even though the mother might subsequently deny her minor child the use of his motorcycle, her right to do so lies in her rights and duties as custodial parent, not in any rights of legal ownership. See McKinnon v. First National Bank of Pensacola (1919) 77 Fla. 777, 82 So. 748 (In McKinnon, the Florida Supreme Court noted that while a father had given money to his children as an absolute gift, he “did not intend for them to acquire extravagant habits by permitting them to use the money as they pleased before they were eighteen years old. This, as their natural guardian, he had the right to do, and if the gifts had been made by a third person he could have controlled his children in its expenditure until they reached an age when he considered it was advisable for them to use it as they saw fit.” 82 So. at 749, 750 (emphasis supplied)).

. . . and like State v. Udell (Court of Appeals of Kansas, July 22, 2005 34 Kan.App.2d 163, 115 P.3d 176):

a parent/child relationship gives rise to a presumption of control of property. Rith, 164 F.3d at 1330. The Rith court noted evidence which would tend to rebut that presumption included the child’s payment of rent, a lock on the bedroom door, or an implicit or explicit agreement the parents never enter a particular area. 164 F.3d at 1331.

. . . and like L. A. M. v. State (Supreme Court of Alaska. March 15, 1976, 547 P.2d 827)

While there is much discussion of parental rights in reported cases, few cases attempt to define those rights making discussion difficult. A careful review of the literature, including case law, treatise and law review, indicates that the following have been listed as ‘parental rights’ protected to varying degrees by the Constitution:

*****

(4) The right to control and manage a minor child’s property.*

*I can’t find any U.S. Supreme Court or other case law supporting this claim.

But then there are cases such as In re Casey (December 4, 2008, Not Reported in Cal.Rptr.3d2008 WL 51229895 Cal. State Bar Ct. Rptr. 1172008 Daily Journal D.A.R. 17,952)

(Emery v. Emery (1955) 45 cal.2d 421, 432 [minor child’s property is his or her own, and not that of child’s parents]; see also Fam.Code, § 7502 [parent has “no control over the property of [a] child”]; In re Tetsubumi Yano’s Estate (1922) 188 Cal. 645, 649 [minority does not incapacitate a person from taking and holding real estate].)

Black’s Law Dictionary ((11th ed. 2019), under the definition of “parental rights”) has this, but then gives no citations to the Constitution or statutes or case law:

parental rights (18c) A parent’s rights to make all decisions concerning his or her child, including the right to determine the child’s care and custody, the right to educate and discipline the child, and the right to control the child’s earnings and property.

Before researching this question, I thought the answer was obvious. It’s not.

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

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

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Can I sell or trade in the family car while divorce proceedings are pending?

Can I sell or trade in the family car while divorce proceedings are pending?

How would a spouse in process of divorce go about trading her van that is in both spouses name, if the other spouse is uncooperative? Would surrendering her van to the bank be an alternative?

If you owe more on the van than it is worth and don’t depend upon the van for essential transportation needs, then if you were to sell the van such that you’d be left with just the loan deficiency (the difference between the amount the van was worth or sold for and the remaining balance of the loan), you’d probably not be punished. It would be hard for anyone to argue or for a court to conclude that by getting rid of a van worth less than the loan encumbering it you destroyed, dissipated, or diminished an “asset” that had a negative value. And if your spouse agrees (get it in writing!) you can sell the van, you’re fully in the clear.

Bear in mind, however, that many states have an “ATRO” rule (automatic temporary restraining order) that provides that in every divorce action that concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life. Violation of this rule can result in you being sanctioned for contempt of court. Other states that don’t have ATROs in divorce cases can still provide for the judge to enter a restraining order at the outset of a divorce case that, among other things, restrains you and your spouse from transferring or disposing of any marital property without the written consent of the other party or an order of the court.

Also bear in mind that if your credit is already bad and you won’t be able to qualify for a new loan for a replacement vehicle, you may be better off paying the loan for a vehicle you have in hand. And if 1) your spouse depended on using that van to get to work or the doctor or the store, etc., 2) your spouse does not want the van sold, and 3) by selling the van you would deprive your spouse of his/her only means of transportation, the court would likely frown on that and order you to provide or pay for a replacement vehicle.

The safest way to sell off the van or trade the van in for a different vehicle is to move the court (file a motion with the court) for permission to sell the van or trade the van in for a different vehicle. Now just because you filed the motion does not necessarily mean the court will grant that motion.

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

https://www.quora.com/How-would-a-spouse-in-process-of-divorce-go-about-trading-her-van-that-is-in-both-spouses-name-if-the-other-spouse-is-uncooperative-Would-surrendering-her-van-to-the-bank-be-an-alternative/answer/Eric-Johnson-311

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Can I protect marital assets from my spouse by “temporarily gifting” them?

Can I protect marital assets from my spouse by “temporarily gifting” assets to somebody else until after the divorce is final?

Can you? Like is it doable? Sure, you can do it. And many divorcing people do this very thing successfully (meaning they get away with it).

But is it legal? No.

Translated, your question really means: “Can I hide or hog marital assets from my spouse by falsely claiming to have “gifted” the assets to someone without ever intending to give the assets away but in fact intending to get them back after falsely claiming to have gifted them away?”

As you might imagine, this has been tried before. Courts and legislatures have noticed this kind of thing is tried all the time, which is why it’s illegal.

There’s even a term for it: fraudulent transfer. A fraudulent transfer in divorce occurs when one spouse someone knowingly transfers ownership of marital property in an attempt to deprive the other spouse of his/her portion of the ownership or value of the marital property.

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

https://www.quora.com/Can-I-protect-marital-assets-from-my-spouse-by-temporarily-gifting-assets-to-somebody-else-until-after-the-divorce-is-final/answer/Eric-Johnson-311

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Why is dividing money in a divorce so difficult? Shouldn’t it be as simple as take what each earned?

Why is dividing money in a divorce so difficult? Shouldn’t it be as simple as each takes what each earned?

In Utah (where I practice law), the law is not “take what we each earned.” In Utah, the law is:

“Marital property is ordinarily all property acquired during marriage and it encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived. (Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct.App.1990)”

See also Keyes v. Keyes, 351 P.3d 90, 99 (Utah Ct.App. 2015):

¶ 28 In addressing the distribution of property between divorcing spouses, the trial court must first determine whether the assets in dispute are marital or separate property. Dahl v. Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566. “Marital property is ordinarily all property acquired during the marriage … whenever obtained and from whatever source derived.” Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct.App.1990) (citation and internal quotation marks omitted).

“In Utah, marital property is ordinarily divided equally between the divorcing spouses….” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 13, 176 P.3d 476. After identifying property as marital, the court must “consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally,” “assign values to each item of marital property so that [a] distribution strategy … can be implemented,” and “distribute the marital assets consistent with the distribution strategy.” Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566 (alteration and omission in original) (citation and internal quotation marks omitted).

On the other hand, “separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse.” Stonehocker, 2008 UT App 11, ¶ 13, 176 P.3d 476 (citation and internal quotation marks omitted). In most cases, “equity requires that each party retain the separate property that he or she brought into the marriage, including any appreciation of the separate property.” Dunn, 802 P.2d at 1320. Separate property may lose its separate *99 character, however, “through commingling” or if “the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property.” Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). In making this assessment, the court “look[s] to a party’s actions as a manifestation of a spouse’s intent to contribute separate property to the marital estate.” Dahl, 2015 UT 23, ¶ 143, 345 P.3d 566.

After you marry, your income from employment is marital property, not your separate property. That means that during the marriage your spouse has a right not just to half of your income, but all of it (your spouse has no spousal claim to all—or even half—of your income when he/she ceases to be your spouse). This also means that in the case of a divorce your spouse will get half of any retirement funds you save or benefits you accrue during the marriage. And even after divorce your spouse can get a portion of your income in the form of alimony, if your spouse came to be dependent upon you financially to maintain the standard of living to which he/she became accustomed during the marriage.

https://www.quora.com/Why-is-dividing-money-in-a-divorce-so-difficult-shouldn-t-it-be-as-simple-as-take-what-earned/answer/Eric-Johnson-311

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What’s the best way to hide money from your spouse before divorce and where is the best place to hide it?

What’s the best way to hide money from your spouse before divorce and where is the best place to hide it?

You should not hide marital money from your spouse. That money is as much his/hers as it is yours. Hiding marital money from your spouse would be no fairer to your spouse than would be embezzling money from your business partner—you have no right to hide that money and to try to keep it for yourself.

There is, however, a difference between hiding money from your spouse and “securing” money so that your spouse does not waste it (which is known as “dissipation” and/or “diminution” of marital assets and the marital estate). If your spouse is a spendthrift, or you fear that your spouse is going to try to hide money from you, then one way to protect marital funds from being wasted is to convert money into assets that are not liquid, such as real estate (raw land, rental property). Another option would be giving money to your children or setting up trusts for children’s future or education (as long as you’re truly giving the money to your children and not using those transfers to the children as a front for keeping the money for yourself*). In Utah, assets belonging to the children are not marital assets, and may not be divided between husband and wife in a divorce. Jefferies v. Jefferies, 895 P.2d 835 (Utah Ct.App.1995)

*See Jefferies v. Jefferies, 895 P.2d 835, ¶ 8 (Utah Ct.App.1995):

“A transfer made pursuant to the Uniform Transfers to Minors Act “is irrevocable, and the custodial property is indefeasibly vested in the minor.” Utah Code Ann. § 75–5a–112(2) (1993). It is beyond the jurisdiction of the court when dividing marital assets between the parents in a divorce proceeding to reach assets of the children. We therefore must remand this case to the trial court to divide the assets equitably without the inclusion of the children’s accounts. Of course, in making an equitable division between the spouses, the trial court, given the findings of fact in this case, may take into consideration the transfers made by Mr. Jefferies to the children at the expense of Ms. Jefferies. Although the trial court cannot reach the children’s separate assets, it can hold Mr. Jefferies accountable to Ms. Jefferies for a dissipation of marital assets. See Andersen v. Andersen, 757 P.2d 476, 479 (Utah App.1988).”

What constitutes marital property (and property includes money)?

In Utah, where I practice divorce law:

“Marital property is ordinarily all property acquired during the marriage … whenever obtained and from whatever source derived.” Id. (omission in original) (citation and internal quotation marks omitted); see also Gardner v. Gardner, 748 P.2d 1076, 1078–79 (Utah 1988) (explaining that “marital property encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived” (citation and internal *938 quotation marks omitted)). By contrast, “separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse.”

So that means:

  1. your earned income is marital property, meaning that your spouse has as much right to your income as you do (and vice versa)
  2. passive income from a business or from investments that you established during the marriage are marital property, regardless of whether you established the business and/or the investments jointly with your spouse during the marriage; either way, that income is marital property.

What is not marital money?

In Utah, where I practice divorce law:

  1. money or other property you inherit is not marital property, so long as you don’t commingled that money or property with other property or gift that money or property to the marriage or marital estate. What am I saying? The inherited money/property would become marital property if ownership of it can no longer be distinguished from the marital property. Let me give you a few examples:
    1. If you inherited $30,000 and then deposited that money into a joint account with your spouse, a case could be made that the money is now commingled and thus marital property.
    2. If you inherited $30,000 and then used that money to remodel the house that you and your spouse own together, a case could be made that the money is now commingled with marital property and has thus become marital property.
  2. compensation for a personal injury can be either separate property or marital property, depending on the nature of the damages, but specifically, amounts received as compensation for pain, suffering, disfigurement, disability, or other personal debilitation are generally found to be the personal property of the injured spouse in divorce actions, while money realized as compensation for lost wages and medical expenses, which diminish the marital estate, are considered to be marital property. (Naranjo v. Naranjo, 751 P.2d 1144, 1146 (Utah Ct. App. 1988))
  3. Income you receive during the marriage, but from a source other than your employment (such as A) from a trust that existed before your marriage or that was created by a third party for your sole benefit, and that you do not spend on marital expenses or that is deposited in an account in your name only; or B) from investments you made before your marriage that stay in accounts you opened before marriage) will likely be considered your separate property.

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

https://www.quora.com/Whats-the-best-way-to-hide-money-from-your-spouse-before-divorce-and-where-is-the-best-place-to-hide-it/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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Can a wife expect a property to be split equally if she cheated?

Can a wife expect a property to be split between partners if she cheated on her partner in the US (assuming no contract has been signed)?

Yes.

People who are not divorce lawyers think that courts really hate and really punish infidelity and adultery by making lop-sided property and/or alimony divisions in divorce.

They do not.

Sure, you may hear of the occasional outlier judge who does, but they are the exception that proves the rule.

The purpose of dividing marital property is to ensure a fair division between both spouses. An equal division is presumptively fair. While some acts or omissions of a spouse can result in a less than or greater than equal division of property, those instances are rare and infidelity is usually not one of the acts that will result in an unequal division of marital property or determine whether one gets or pays alimony.

While in many jurisdictions (including Utah, where I practice divorce and family law) a court can consider infidelity in awarding alimony, the purpose of alimony is not to punish. Instead, the purpose of alimony is to prevent an ex-spouse from becoming a welfare charge on the state. Alimony is thus primarily based upon need and ability to pay. Infidelity may result in a slightly greater alimony award or perhaps an award of slightly longer duration, but it usually won’t result in the innocent spouse being awarded the couple’s entire house or the like.

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

https://www.quora.com/Can-a-wife-expect-a-property-to-be-split-between-partners-if-she-cheated-on-her-partner-in-the-US-assuming-no-contract-has-been-signed/answer/Eric-Johnson-311

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