Can marital and non-marital income and debts offset each other?

Asked about 1 year ago - Louisville, KY

Example: Assuming the marital/non-marital status of all money and debts is easy to prove, and that everything described here happened shortly before the divorce: The husband received $100,000 in marital income and put it in his bank account. Then, from another bank account, which consisted of non-marital money, he paid $100,000 of marital debts. If he had paid from the marital $100,000, there would be no issue, because his non-marital money would not have been touched. Does it become a big problem because he paid from the wrong account? Or is it just a matter of offsetting one with the other?

Note that this is not nearly as complicated an issue as the example is. It's a very simple issue which happens to need detailed examples to clarify exactly what the issue is.

Attorney answers (3)

  1. Paul V Hibberd

    Contributor Level 6

    2

    Lawyers agree

    Answered . With respect to assets, it is the responsibility of the person claiming that an item or funds are non-marital to prove the source of the asset, i.e. to trace the asset to a source that makes it non-marital according to the language in the statute. With respect to debts, there is not a presumption that any debt incurred during the marriage is marital, so if one spouse enjoyed all of the benefit of the borrowed funds, that debt could be characterized by a court as non-marital and the sole liability of that spouse.

  2. David Alexander Browde

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . It actually is quite complicated. Under some circumstances the court may accept the innocent mistake/convenience argument, but other judges may not.

    Under the rules governing the conduct of attorneys in New York it may be necessary to remind you that this answer... more
  3. Lee Alan Thompson

    Contributor Level 20

    Answered . My guess, and that's all it is because one never knows what a judge is going to do, is that with tracing(showing the monies in and out), the judge should see the error plainly enough. I hope, with this money riding on it, you'll be using an attorney.

    Attorneys on Avvo donate their time and your feedback is appreciated. Be sure to mark the "Best Answer" or Helpful"... more

Related Topics

Divorce

Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Dividing debts in a divorce

Responsibility for debts acquired during marriage may fall upon both parties after divorce, even if only one spouse incurred the debt.

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