Marital property is any property acquired during a marriage by either spouse, with some exceptions set by state law. It is typically divided during a divorce.
Temporary Exclusive Occupancy Temporary exclusive occupancy of the marital home may be awarded to either spouse while the divorce is pending. By definition, it terminates upon a final judgement, which will dispose of the marital residence by any number of factors. Temporary exclusive occupancy may be made without regard to who owns the marital home, however, ownership may be considered. The factors normally considered by the court are: Protecting the health, safety and well being of one spouse Whether or not one spouse has voluntarily left the marital home Final Order of Exclusive Occupancy As part of the final judgment of divorce, the court may award exclusive occupancy of the marital home to one spouse for a set amount of time as one of the options to finalize the marital assets. Exclusive occupancy is generally an option when one parent is awarded custody, there is a showing that the children's interest would be best served by an award of exclusive occupancy for a set amount of time, and there are insufficient assets to offset the other spouse's interest in the home. The court will also consider the age of the children since that will determine the duration of exclusive occupancy, the length of the marriage, the deprivation of the other spouse of the use of his or her property, and the overall financial circumstances of the parties.
Classification of Marital Property Marital property is any asset which is acquire by either spouse from the date of marriage to the date the divorce or annulment commences. Marital property includes any asset held by either spouse alone or if they hold it jointly. The exceptions to marital property are property acquired from separate property, a gift from someone other than the spouse, inheritances, and personal injury awards for pain and suffering. Case law has held that marital property is to be construed broadly, while separate property is to be construed narrowly Marital Property Must be Valued In order for marital property to be divided, it must be valued. Valuation date can range from the date of filing for the divorce, to the date of trial or any date in between. Different dates may be used for different assets. As a general rule of thumb, assets which appreciate passively, without input from the spouse, due to market forces will use a trial date valuation, while assets which actively increase due to the actions of a spouse will use a commencement date valuation The Statutory Factors The trial court is given great discretion in how it distributes marital property, provided it gives some sort of basis using the statutory factors which are as follows Factor 1: The income of the parties at the time of the marriage and at the time of the commencement of the action. DRL 236 B(5)(d)(1) Factor 2: The duration of the marriage and the age and health of both parties. DRL 236 B(5)(d)(2) Factor 3: The need of a custodial parent to occupy or own the marital residence and to use or own its household effects. DRL 236 B(5)(d)(3) Factor 4: The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution. DRL 236 B(5)(d)(4) Factor 5: The loss of health insurance benefits upon dissolution of the marriage. DRL 236 B(5)(d)(5) Factor 6: Any award of maintenance under subdivision six of this part. DRL 236 B(5)(d)(6) Factor 7: Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse. DRL 236 B(5)(d)(7) Factor 8: The liquid or non-liquid character of all marital property; DRL 236 B(5)(d)(8) Factor 9: Probable future financial circumstances of each party. DRL 236 B(5)(d)(9) Factor 10: The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; DRL 236 B(5)(d)(10) Factor 11: Tax consequences to each party. DRL 236 B(5)(d)(11) Factor 12: The wasteful dissipation of assets by either spouse; DRL 236 B(5)(d)(12) Factor 13: Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; DRL 236 B(5)(d)(13) Factor 14: Any other factor which the court shall expressly find to be just and proper. DRL 236 B(5)(d)(14) Distributive Award When dividing a specific asset is impossible or impractical, the court may make a distributive award instead. This is simply a dollar amount equal to the spouse's share as determined by the Court A dissolution of the marriage is a requirement The marriage must be dissolved for the court to have the authority to award marital property under equitable distribution. Absent a change in the marital status, the court is without authority to distribute marital property. The lack in change of the marital status is why there cannot be a pendente lite award of marital assets and why it can never be modified.
Houston Divorce Lawyer Mary E. Ramos takes a few minutes to provide a basic explanation of the process, everyday situations, and lessons learned. Watch this video to avoid one of the biggest pitfalls of drafting a final settlement agreement outside of mediation.
Q: How important is a prenuptial agreement? A: Without a prenuptial agreement, your new spouse may be able to invalidate your existing estate plan. Such agreements are especially helpful if you have children from a previous marriage or important heirlooms that you want to keep on your side of the family. Q: In what way is a prenuptial agreement used? A: A prenuptial agreement can be used in a second marriage when both parties have children. For example, suppose you get remarried and both you and your spouse have children from a prior marriage. You want your house to pass to your children, but without proper planning and an agreement in place, your spouse could inherit the house and then pass the house to her children when she dies. An airtight prenup agreement could prevent that from happening. Q: When is a prenuptial agreement considered valid? A: To be valid, a prenuptial agreement must be in writing and signed by both spouses. A court will not enforce a verbal agreement. Q: When is a prenuptial agreement considered invalid? A: An agreement will be invalid if one spouse is pressured into signing it by the other spouse. Both spouses must read and understand the agreement. If a stack of papers is put in front of one spouse and he or she is asked to sign quickly without reading, the agreement can be invalidated. Q: What information does a prenuptial agreement contain? A: Both spouses must fully disclose assets and liabilities. If either spouse lies or omits information about his or her finances, the agreement can be invalidated. Q: What effects do a prenuptial agreement have financially? A: Though the spouses can agree to most financial arrangements, a prenuptial agreement that modifies child support obligations is illegal. If an agreement contains an invalid provision, the court can either throw out the entire agreement or strike the invalid provision. Similarly, if the terms of the agreement are grossly unfair to one spouse, the agreement may be invalid. Q: Are there any legal obligations required to file a prenuptial agreement? A: Some states require spouses to seek advice from separate attorneys before signing a prenuptial agreement. Regardless of whether it is required by state law, it is the best way to make sure each spouse’s interest is protected. Though a prenuptial agreement is signed before marriage, sometimes similar agreements can be made after the wedding (called a post-nuptial agreement). To find out if one of these agreements is right for you, contact your attorney.
A. Choose the Right Attorney Any Family Law is personal to you. Make sure that when you seek out advice of counsel, you think about whether or not you can work with this attorney. Each case may take several months, depending on whether or not there are children involved, the parties are amenable to working issues out etc. B. Get the Services to be provided in writing. It is equally important that you obtain from counsel, a statement of the terms of engagement. This should include the types of services to be provided. If a retainer is required, make sure that the statement clearly spells out the amount required, how it is to be used and if it is refundable. Equally important is the hourly rate and how each minute is to be billed. You are already under enough pressure, you do not need to worry about the financial aspects with the attorney.
Are Diamonds Forever? According to Business Insider in 2017 South Carolinians spent an average of $8,599 on engagement rings. (https://www.businessinsider.com/engagement-ring-average-cost-by-state-2018-2#6-massachusetts-8426-46) With numbers like that it’s no surprise that when relationships get rocky, who gets to keep the ring is a common controversy. Surprisingly, when the breakup happens is more important than who caused it when deciding who gets to keep the ring. In South Carolina, an engagement ring is viewed as a conditional gift. As explained in Campbel v. Robinson, 398 S.C. 12, 725 S.E.2d 221 (S.C. App, 2012) “an engagement ring . . . is impliedly conditioned upon the marriage taking place, [and until] the condition underlying the gift is fulfilled, the attempted gift is unenforceable and must be returned to the donor upon the donor’s request.” Therefore, if the couple breaks up before the marriage, whichever party gave the engagement ring generally has the right to ask for it back regardless of who caused the breakup. Of course, because the couples were never married, if the issue has to be litigated it will be in civil court instead of family court. On the other hand, if the couple breaks up after they are married it may be a different matter as the condition for the gift was fulfilled when the marriage took place. The South Carolina Court of Appeals held that “[a]n antenuptial gift of an engagement ring is the recipient’s separate property.” Frank v. Frank, 429 S.E.2d 823, 311 S.C. 454 (S.C. App., 1993) In other words, the court determined that the ring was not marital property and therefore not subject to equitable division by the Family Court. This may cause some people to think twice before giving the family heirloom engagement ring away. Although it may be possible to protect an heirloom ring with a prenuptial agreement. Disclaimer Nothing in this article is intended to constitute legal advice or create an attorney – client relationship with the reader.