Family Law

Divorce Property Division FAQ Set II

Q: Am I entitled to any part of my spouse's medical practice?

  • A:

    It depends on the law in your area. In some states, a professional license acquired during the marriage is a marital asset that can be divided between the spouses. In other states the license is separate property and belongs to the spouse who earned it.

    Valuing the license is a very difficult thing. And, even if the license isn't a marital asset, it's a good indicator of your ex-spouse's future ability to earn. This can be important for determining a spousal support award.

    The actual medical practice, on the other hand, may be a marital asset. Depending on when it was started and how it performed as a business during the marriage, you might have a claim to a part of the asset.

    All of these matters can be very complex, so it's best to talk to an attorney to make sure you get everything you're entitled to.

Q: Can I appeal a property division court ruling?

  • A:

    All states have a statute of limitations, a period of time after the divorce when you or your ex-spouse can file a notice of appeal. The time limit can be fairly short, like a month. After that, any chance of having a court look at the case again depends on the facts of the case and the laws in your state.

Some states have an open-ended rule where someone has years to challenge an unjust court order. However, "unjust" is very different than simply not liking the judgment. You should talk to an attorney immediately after the divorce if you think you were treated unfairly in the case.

Q: Can I get rid of my financial obligations from my divorce in bankruptcy?

  • A: Alimony and child support can't be discharged (forgiven) in bankruptcy. Neither can debts that are in the nature of support. In many states, courts will look to the intent of the spouses in deciding whether taking responsibility for a marital debt, like a credit card bill, is "in the nature of support."

    The language of your settlement agreement and your intent at the time you signed the agreement will be deciding factors as to whether you're able to discharge that debt. If it can be proven that you intended payment of the debt to help support your ex-spouse and/or children, you'll most likely still be responsible for paying the debt even if you file bankruptcy.

Q: Can property acquired prior to marriage be divided upon divorce?

  • A:Generally, assets owned by either spouse before the marriage will remain that spouse's separate property after the marriage ends. The property won't be divided or distributed by a court as marital property.

It's possible to handle separate property in such a way that it gets "commingled" or mixed with property acquired after the marriage. Money is the best example of this. If you put your separate money into a bank account that both you and your spouse make deposits and withdrawals, that money might become property of the marriage. It could be divided at divorce.

A couple can also agree to change property from separate to marital, such as where one spouse's pre-marriage home is re-titled in both spouse's names.

Q: Is my soon-to-be-ex entitled to share in my severance package?

  • A:

    That depends on the specific facts. Are you still married and receiving benefits from your severance package?Since the marriage hasn't been terminated yet, your spouse likely has a claim to part of the package. That's because the benefits are being enjoyed during the marriage.

    However, your spouse likely doesn't have a claim to any part of the package that will only be enjoyed after the marriage is terminated. Again, this is because the divorce terminates the marriage and your spouse's right to share in the benefit.

Q: Is my spouse entitled to half my workers' compensation settlement if we divorce?

  • A:

    Quite possibly. If the workers' compensation settlement is payment for something that happened to you during the marriage, and the payment normally would be considered as marital property, then your spouse may have a claim to a share.

    The best example is lost wages. If you are injured on January 1 and don't return to work until March 1, and get divorced on February 1, your spouse may have a good claim to the money that compensates you for the wages you lost in January.

Q: My spouse moved out two years ago and I stayed in our home, paying the mortgage and taxes and such. Who's entitled to the increased value of our home if we divorce?

  • A: The states differ on this. In some states the court will determine a "de facto" date that the marriage ended. It might be the day your spouse moved out. If so, acquisitions after that date are often considered separate property, and won't be divided at divorce. However, any interest your spouse had before moving out still belongs to your spouse, as maybe part of the appreciated or increased value of the home.

In other states, the date of the actual divorce is the important date. Also, some states will still do an equitable distribution. To keep things fair, a court might consider that you paid the mortgage and taxes during that period, and give you all or a bigger portion of the home's value.

State law on separation might also have a role to play here. In some states, a formal, legal separation can be filed, and it can change the rules governing the acquisition of property. In other states, separation is just informal, and might go into determining the "de facto" date of divorce.

Q: Will I be entitled to any of the money in my spouse's investment account?

  • A:

    Laws on this issue vary significantly state by state. In most states, property acquired through the "labor" of a spouse is usually marital property and will be divided between the spouses. An investment account may or may not fall under this rule.

    Also, states vary greatly on whether income - like interest or dividends - from separate property is automatically marital, or if it must relate to a spouse's labor before it will be divided. You may have a claim to part of the fund depending on how the laws in your state deal with this.

    Investments put into the account during the marriage are likely marital property - assuming they don't come from separate property owned by your spouse - so they'll be divided in the divorce.

Tracing funds through investments can be very complex. It's a good idea to talk to an attorney if you or your spouse have a lot of investments.

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