Division of Property FAQs

Q: My wife and I jointly purchased a home three weeks before we got married and lived in it together after marriage. Is the house marital property?

A: Since the property was acquired before you were married, the court will hold the house to be nonmarital property.

Q: I filed a workers’ compensation claim many years prior to getting married. I have heard that when I divorce my husband, he is entitled to some of my compensation. If it is true, how much will he get?

A: It is true that your workers’ compensation benefits are considered marital property and, as a result, your husband is entitled to his share. The court considers the purpose of workers’ compensation – to compensate for lost wages and future earning capacity – rather than the time of its accrual in determining whether it is marital property. Furthermore, payment of medical expenses through marital assets also designates workers compensation as marital property. At this point, it is difficult to determine how much he will get without more facts regarding your workers compensation claim.

Q: I was the sole stockholder of a corporation that was formed before I married my wife. The corporation recently dissolved, and the principal asset of the corporation was deeded to me. Will my wife be able to get any of this as part of our divorce?

A: It is unlikely that the corporate asset will become marital property. Assuming all of the stock of the corporation was acquired prior to your marriage, the corporate asset deeded to you is directly traceable to the stock and, therefore, is nonmarital property.

Q: My wife and I jointly own a house and cannot agree who will own it after the divorce. Neither one of us want to give it up. What will happen to the house?

A: A court must divide jointly held property equally and will not change title to property, except in the case of pensions. If neither of you can decide who keeps the house, then the court will sell the house via a trustee and the proceeds will be divided equally between the two of you.

Q: If the value of my company rises while I am married, will this be considered marital property?

A: It depends on how much of the increase in value was contributed by your spouse. A shared effort between you and your spouse will transform your non-marital asset into a marital one. For example, if your spouse has a full-time career outside of your business and that’s allowed you to reinvest all of the business funds back into the corporation, then the court may consider a portion of the corporate asset marital property.

Q: Are the pensions I receive marital property?

A: Pensions are generally marital property if earned or acquired during the marriage.

Dissipation of Assets

Q: I am having an affair right now and want to buy my girlfriend a car and pay for her rent. Will this be considered dissipating assets?

A: Assuming you are using marital assets, buying a car and paying for your girlfriend’s rent will provide a basis for a finding of dissipation. As a result, the money you spend on her will be added into the total value of marital assets. Furthermore, if you are hiding these expenses as a business expense, you must be aware that doing so can also be considered dissipation.

Q: I recently moved out of the house because my wife wants a divorce. Can I continue using our joint account to pay mortgage on the condominium I just bought and for work related travel?

A: If you continue to use the joint account to pay your mortgage, then it is possible that you will be found to be dissipating assets especially since you are employed and assuming you have sufficient income to afford the mortgage. Your use of the joint account for travel, on the other hand, will not be considered dissipation so long as it is reasonable, necessary, and legitimate. Excessive, inappropriate, or unwarranted travel expenses may be considered dissipation. Also, with regard to travel, the court will see if you have consistently been traveling during the marriage and incurring this type of expense.

Q: I have paid child support and alimony to my former wife on a regular basis but would like to pay for future payments now. What consequences will this incur?

A: Assuming that you are not in “arrears,” that is you do not have payments which you still owe, then payment for “future” child support and/or alimony will be considered dissipation. Therefore, you will be held liable for the amount you have dissipated.

Q: Can I pay for my attorney’s fees with marital assets?

A: Assuming that the attorney’s fees are reasonable such that the payments do not cause a severe depletion of marital assets, using them to pay for it will not be considered dissipation.

Use and Possession

Q: My husband’s parents partly paid for the home that my husband and I lived in with our children before we began divorce proceedings. While I think we’ve agreed to get joint physical and legal custody, I am scared that I am going to lose the home because it was partly paid for by my former in-laws. Am I going to lose the home?

A: Maybe not. The court will look at what is in the best interests of your children in keeping them in the same home. If you and your husband get joint legal and physical custody of your children, there is still a possibility you may be awarded use and possession of the home for up to three years.

Q: My business, which is owned by me and two other partners, includes cars as its assets. If my wife is awarded use and possession of the family use property, will this be included?

A: Likely not, assuming the vehicle is owned by the business and not by you.

Q: I was given the use of the home after I divorced my husband, but the court ordered me to pay all mortgage payments. I recently sold my house and split the proceeds with my former spouse as required by a prior agreement. Is there anyway I can get my spouse to pay for part of the house expense I had to incur during my use?

A: Since your property was jointly held, the court can require your spouse to pay his or her share of expenses while you both owned the property together. Since you were required to pay all of the expenses, you can seek “contribution” from your spouse for additional expenses.