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December 27, 2012

What is “Mine” vs. What is “Ours”

Category: General — admin @ 11:25 am

When a marriage breaks up, the husband and wife, by nature, each become possessive, the mentality of circling the wagons around what each feels belongs to them.  Such mindsets result in behaviors often compelling the need to litigate a matrimonial action rather than negotiate or mediate a resolution.

As such, an understanding of property rights by each of the spouses is fundamental to moving forward through resolution.  Marriage is viewed in law as a partnership.  Everything that comes to the partners during the course of the partnership is partnership property.  When the partnership ends, it must be divided as such.  Bank accounts in your name only are not yours; they are property of the “partnership.”  So is the car that you bought in your name and made payments for through your account only and so it goes with anything else that was acquired during the marriage.  Narrow exceptions fall in the categories of assets that you owned prior to the marriage that maintained a separate identity throughout the course of the marriage or perhaps gifts or inheritance that came to you individually during the course of the marriage that, again, were maintained as separate property.  The burden of proof is on the spouse who wants to claim particular properties or monies as that spouse’s alone, the presumption being that they are joint property.  The comingling of any assets into the joint property fortifies the presumption that the properties have become joint.

Adding of value during the time of the marriage can make the added value marital property.  A good example could be an increase in your retirement account that was yours alone before the marriage and has now doubled or tripled during the course of the marriage.  Monies earned toward retirement during the marriage are marital property.  Increases in value via the time, effort or resources put into separate property also makes such increased values, occurring during the marriage, marital property.  Court rulings in this regard can be mixed and scattered.  This is why attorneys advocate prenuptial agreements: so that everyone’s intent and understanding is clarified before the marriage.

If a spouse secures a higher educational degree during the marriage, the value of the increased earning capacity is now joint property.  When a spouse leaves the marriage the other spouse has a claim on that increased earning ability.  Claims can be made with regard to contributions made during the marriage enabling the other spouse’s successful business endeavors.  Disagreements over such evaluations are stuff from which matrimonial trials are made and the reason why valuation experts are brought into the picture.

A good attorney should be able to sit down with you in an initial client meeting and give you a solid orientation of the respective claims and equities of each spouse with regard to marital property.